IIJRARY
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OF
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OF CALIFORNIA
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http://www.archive.org/details/americanstaterep101freeiala
THE
American State Reports,
CONTAISiWG THK
CASES OF GENERAL VALUE AND AUTHORITY
SUBSEQUENT TO THOSE CONTAINED IN THE "AMERICAN
DECISIONS" AND THE "AMERICAN REPORTS,"
DECIDED IN THK
COURTS OF LAST EESOBT
OF THE SEVERAL STATES.
SELECTED, REPORTED, AND ANNOTATED
By A. C. FREEMAN.
VOLUME 101.
SAN FRANCISCO:
BANCROFT-WHITNEY COMPANY,
Law Publishers and Law Bookseli,er.s.
1905.
/ •■ •■
Copyright, 1905
BY
BAJN^CEOFT-WHITNEY COMPANY.
San Francisco:
The Fii,mf.r Brothkrs Electrotype Company,
Tvi'o<;raphi;ks a>:d Sri;Ri;oxYrERS.
AMERICAN STATE REPORTS.
VOLiUME 101.
SCHEDULE
showing the original volumes of reports in which the
cases herein selected and re-reported may be found,
and the pages of this volume devoted to each state.
PAGE.
Alabama Reports .
California Reports
Idaho Reports . .
Illinois Reports .
Iowa Reports . .
Kentucky Reports
Minnesota Reports
Missouri Reports .
Montana Reports .
Nebraska JIeports
New Hampshire Reports
New Jersey Law Reports .
New York Reports . . .
North Carolina Reports .
Ohio State Reports . . .
Pennsylvania State Reports
Utah Reports
Washington Reports . .
(3)
Vol. 139.
17-67
Vol. 143.
68-139
Vol. 8.
140-216
Vol. 209.
217-253
Vols. 122, 123.
254-344
Vol. 113.
345-383
Vol. 90.
384-424
Vols. 178, 179.
425-543
Vol. 29.
544-591
Vol. 65.
592-649
Vol. 72.
650-700
Vol. 69.
701-717
Vol. 177.
718-824
Vol. 134.
8l>5-887
Vol. 70.
888-903
Vol. 208.
904-944
Vol. 27.
945-992
Vol. 34.
993-1027
SCHEDULE
SHOWING IN WHAT VOLUMES OF THIS SERIES THE CASES
KEPOilTJCD IN THE SEVERAL VOLUMES OF OFFICIAL
REPORTS MAY BE FOUND.
State reports are In parentheses, and the numbers of this series in bold-faeed fig^ures.
Alabama. — (S3) 3; (84) 5; (85) 7; (86) 11; (87) 13; (88) 16; (89) 18; (90,
91) 24; (92) 25: (9:-i) 30; (94) 33; (95) 36; (96, 97) 38; (98) 39; (99)
42; (100, lUl) 46; (102) 48; (103) 49; (104, 105) 53; (106, 107, 108) 54;
(109, 110) 55; (111) 56; (112)57; (113)59; (11-1) 62; (115, 116) 67;
(lis, 119) 72; (120) 74; (121) 77; (122, 12.% 124, 125) 82; (126. 127) 85;
(128) 86; (129) 87; (130) 89; (131, 132) 90; (133) 91; (134) 92; (13.->)
93; (]3o) 96; (137) 97; (13S) 100; (139) 101.
Arkansas. —(48) 3; (49) 4; (50) 7; (51) 14; (52) 20; (53) 22; (54) 26;
(55) 29; (56) 35; (57) 38; (58) 41; (59) 43; (60) 46; (61, 62) 54;
(63) 58; (64) 62; (65) 67; (66) 74; (67) 77; (iiS) 82; (69) 86; (70) 91; (71)
100
California.- (72) 1; (73) 2; (74) 5; (75)7; (76) 9; (77) 11; (78, 79) 12; (80)
13; (81) 15; (82) 16; (S3) 17; (84) 18; (85) 20; (86) 21; (87, 88) 22
(89) 23: (90, 91) 25; (92, 93) 27; (94) 28; (95) 29; (9()) 31; (97) 33
(98) 35; (99) 37; (100) 38; (101) 40; (102) 41; (103) 42; (104) 43
(105)45; (106)46: (107) 48; (108)49; (109) 50
(10) 3; (11) 7; (12) 13; (13) 16; (14) 20; (15) 22; (16) 25|
(17) 31; (IS) 36; (19) 41; (20) 46; (21) 52; (22) 55; (23) 58; (24) 65;
(25) 71; (2(5) 77; (27) 83; (2S) 89; (29) 93: (30) 97.
CoNNKf.'iiruT. — (54) 1; (55) 3; (56) 7; (57) 14; (58) 18; (59) 21; (60) 25;
(61) 29; (62)36; (63)38; (64)42; (65)48; (66)50; (67)52; (6S) 57;
(69) 61; (70) 66; (71) 71; (72) 77; (73) 84; (74) 92; (75) 96; (76) 100.
Delaware. —(5 Hou.st.) 1; (6 Hou.st.) 22; (7 Hon.st.) 40; (9 Honst.) 43;
(1 .\l:irv.) 65; (2 Marv.) 69; (1 reuucwiU) 73; (2 roiuicwill) 82; (3
I'fuiiL'will) 94.
(4)
Schedule.
Florida. — (22) 1; (23) 11; (24) 12; (25, 26) 23; (27) 26: (28) 29; (29) 30;
(30)32; (31) 34; (32) 37; (33) 39; (34)43; (35) 48; (3(5) 51; (37) 53;
(38) 56; (39) 63; (40) 74; (41) 79; (42) 89; (43) 99.
Georgia. — (76) 2; (77) 4; (78) 6; (79) 11; (80, 81) 12; (82) 14; (83, 84) 20
(85) 21; (86) 22; (87) 27; (88) 30; (89) 32; (90) 35; (91, 92, 93) 44
(94) 47; (95, 96) 51; (97) 54; (98) 58; (99) 59; (100) 62; (101) 65
(102) 66; (103) 68: (104) 69; (105) 70; (106) 71; (107) 73; (108) 75;
(109) 77; (110, 111) 78; (112) 81; (113) 84; (114)88; (115) 90; (116)
94; (117) 97; (118) 98; (119) 100.
Idaho. — (2) 35; (3, 4, 5) 95; (6) 98; (7) 97; (8) 101.
Illinois. —(121) 2; (122) 3; (123) 5; (124) 7; (125) 8; (126) 9; (127) 11;
(128) 15; (129) 16; (130) 17; (131) 19; (132) 22; (133, 134) 23; (135)
25; (136) 29; (137) 31; (138, 139) 32; (140, 141) 33; (142) 34; (143,
U4, 145) 36; (146, 147) 37; (148) 39; (149. 150)41; (151) 42; (152) 43;
(154)45; (153,155)46; (156)47; (157)48; (158)49; (159)50; (160,
161) 52; (162)53; (163)54; (164, 165)56; (166)57; (167)59; (168, 169)
61; (170) 62; (171) 63; (172, 173) 64; (174) 66; (175) 67; (176) 68;
(177, 178) 69; (179) 70; (180, 181) 72; (182) 74; (18.3, 184) 75; (1S5)
76; (186)78; (187) 79; (ISS) 80; (189) 82; (190) 83; (191, 192) 85;
(193) 86; (194, 195) 88; (196) 89; (197) 90; (19S) 92; (199, 200), 93;
(201) 94; (202) 95; (203) 96; (204, 205) 98; (206, 207) 99; (208)100;
(209) 101.
Indiana. —(112) 2; (113) 3; (114) 5; (115) 7; (116) 9; (117, 118) 10; (119)
12; (120, 121) 16; (122) 17; (123) 18; (124) 19; (125) 21; (126, 127) 22;
(12S) 25; (129) 28; (130) 30; (131) 31; (1.32) 32; (13.S) 36; (134)39,
(135) 41; (136) 43; (137) 45; (138) 46; (139) 47; (140) 49; (1, 2, 3
lud. App.; 141)50; (4.5,6 lad. App. ; 142) 51: (7, 8 Iiul. Api.. ; 143)52:
go; [^loo) ou; y^o liui. ^x[)\>.i ox; ^ijw; ot»; ^-u iiiu. ^[}[>. ) o**; [loi,
27 IikI. App.) 87; (28 Ind. App.) 91; (15S) 92; (29 lud. Apn.) 94; (159)
95; (30 Ind. App.) 96; (160) 98; (31 Ind. App.) 99; (161) 100.
Iowa. — (72) 2; (73) 5; (74) 7; (75) 9; (76, 77) 14; (78) 16; (79) 18; (80) 20
(81) 25; (82) 31; (83) 32; (84) 35; (85) 39; (86) 41: (87) 43; (SS) 45
(89, 90), 48; (91) 51; (92) 54; (93) 57; (94, 95) 58; (96, 97) 59; (98) 60:
(99) 61; (100) 62; (101, 102) 63; (103) 64; (104) 65; (105) 67; (106) 68:
(107) 70; (108) 75; (109) 77; (110) 80; (HI) 82; (112) 84: (11:5) 86:
(114) 89; (115) 91; (116) 93; (117) 94; (118) 96; (119)97; (120) 98
(121) 100; (122, 123) 101.
Kansas. — (37) 1; (38) 5; (39) 7; (40) 10; (41) 13; (42) 16; (43) 19; (44) 21
(45) 23; (46) 26; (47) 27; (48) 30; (49) 33; (50) 34; (51) 37; (52) 3d
(53) 42; (54) 45; (55) 49; (56) 54; (57) 57; (58) 62; (59 1 68; (GO) 72
(61) 78; (G2) 84; (()3) 88; (64) 91; (65) 93; (66) 97; (67) 100.
Kentucky. — (S.3, 84) 4; (85) 7; (86) 9; (87) 12; (88) 21; (89) 25; (90) 29
(91) 34; (92) 36; (93) 40; (94) 42; (95) 44; (96) 49; (97) 53; (9b) 56
(99)59;. (100)66; (101) V2; (102)80; (103)82; (104)84; (105)88
Schedule.
(107) 92; (lOS) \
(118) 101.
(lOG) 90; (107) 92; (lOS) 94; (lOi)) 95; (110) 93; (111) 98; (112)99;
(118) 101.
Louisiana. — (39 La. Anu.) 4; (40 La. Ann.) 8; (41 La. Ami.) 17; (4J U.
Auu.) 21; (48 La. Ann.) 26; (44 La. Ann.) 32; (45 La. Ann.) 40; (4!i,
47 La. Ami.) 49; (48 La. Ann.) 55; (49 La. Ann.) 62; (50 La. Ann.) 69;
(51 La. Ann.) 72; (o'l Li. Ann.) 78; (104) 81; (10.;) 83; (lOli) 87; (107)
90; (108)92; (109)94; (110) 98; (111)100.
Maink. — (79) 1; (80)6; (81) 10; (82)17; (83)23; (84)30; (85)35: (80)41;
(87) 47; (88) 51; (89) 56; (90)60; (91J 64; (92)69; (98)74; (94)80;
(95) 85; (90) 90; (97) 94; (98) 99,
Maryland. — (07) 1; (68) 6; (09) 9; (70) 14; (71) 17; (72) 20; (78) 25; (74)
28; (75) 32; (70) 35; (77) 39; (78) 44; (80) 45; (79) 47; (81 ) 48; (82) 51;
(88) 55; (^4) 57; (85) 60; (SO) 63; (87) 67; (S8) 71; (89) 73; (90) 78;
(91) 80; (92) 84; (93) 88; (94) 89; (95) 93; (90) 94; (97) 99.
MASSACiiu.sErrs.— (145)1; (146)4; (147)9; (148)12; (149)14; (150)15; (151)
21; (152) 23; (158) 25; (154) 26; (155) 31; (150) 32; (157) 34; (158) 35;
(159) 38; (160) 39; (161) 42; (162) 44; (103) 47; (101) 49; (105) 52;
(160) 55; (167) 57; (168) 60; (109) 61; (170) 64; (171) 68; (172) 70;
(173) 73; (174) 75; (175)78; (170) 79; (177)83; (178)86; (179)88;
(KSO) 91; (181) 92; (1S2) 94; (183) 97; (184) 100.
MicniOAN. — (60, 61) 1; (62) 4; (68) 6; (04, 65) 8; (00, 07) 11; (OS, 09, 75) 13;
(70) 14; (71, 70) 15; (72, 73, 74) 16; (77, 78) 18; (79) 19; (sO) 20; (81,
82, 88) 21; (84) 22; (85, 80, 87) 24; (88) 26; (89) 28; (90, 91) 30; (92)
31; (98) 32; (94) 34; (95, 96) 35; (97) 37; (98) 39; (99) 41; (100) 43;
(101) 45; (102) 47; (108) 50; (104) 53; (105) 55; (100) 58; (lU7) 61;
(lOS) 62; (lO'.t) 63; (110) 64; (111)66; (112, 113)67; (114)68; (115)
69: (110, 117)72; (IIS) 74; (119) 75; (120) 77; (121, 122) 80: (12.'!)
81: (121) 83: (125) 84; (126) 86; (127) 89; (128) 92; (129) 95; (18i»)
97; (181) 100.
MiN.NK.soTA. — (30) 1; (37) 5; (38) 8; (39, 40) 12; (41) 16; (42) 18; (48) 19;
(41) 20: (45) 22; (40) 24; (47) 28; (48) 31; (49) 32; (50) 36; (51, 52)
38; (53) 39; (54) 40; (55) 43; (56) 45; (57) 47; (58) 49; (59) 50; (OOi 51;
(lil)52; (02)54; (03)56; (04) 58; (05) 60; ((]0) 61; (07, 08)64; (09)
65; (TO) 68; (71) 70; (72) 71; (78) 72; (74) 73; (75) 74; (70, 77) 77;
„„, , ,.,, .„, (72)71; (78)72; (74) ._, _ , .., ..,
(78, 7'.t) 79; (M)) 81: (SI, S2) 83; (S8) 83; (84)87; (85) 89; (sO) 91; (87)
94; (SSi 97; (s\h 99; (9:)) 101.
Mi.ssis.siiTi. — (1,5, 7; (00) 14; (07) 19; (08) 24; (69) 30; (7<») 35; (7n 42;
(72, 48; (7;;) 55: (74) 60; (75) 65; (7r,) 71; (77) 78; (78) 84; (79) 89;
(SiM 92: (M) 95; (^2) 100.
Mi.s.M.i I.I.— ^92) 1; (98) 3; (94)4; (95) 6; (90) 9; (97)10; (98) 14; (99)17;
(ln<», 18; iU!l,20: (102i32: (108)23; (104,105)24; (lOii) 27; ( 1U7) 28;
(los, I (Km 32; (110, 111)33; (112)34; (118, 114) 35; (115) 37; (IIC, 117)
38; (lis 40; " - ■ - ' - - -'
(12(;) 47;
(k;;)) 54;
62; (1 II, I 1-.
(119, l.-.o, 73: (151) 74; .152) 75; (158, 154) 77; (1.55)78; (i:.!)) 79;
(157) 80; (15s, iv.i, 81: (lOD) 83; (101) 84; (102, 10.8) 85; (Kil) 86;
(li;.-.i88; (H;(;)89; (lii7, If.S) 90; (109) 92; (17(J, 171) 94; (172) 95;
(178, 9J; ,I7», 175, 97; (170) 98; (177) 99; (175, 179i 101.
(!|,20: (102)22: (108) 23; (104, 105) 24; (10ii)27; (1U7) 28;
2; (110, 111)33; (112)34; (118, 114) 35; (115) 37; (IlC, 117)
:0; (119, 120. 41: (121) 42; (122) 43; (128) 45; (124, 125) 46;
127) 43; (12S) 49; (129) 50; (130) 51; (131) 52: (;:;2) 53;
i:'.4' 56; (185. 1.80) 58: (187) 59; (18s) 60; (189) 61; (140)
12i G4; (118)65; (I4t)66; (145)68: (!4(;)69: (147,11^71;
Schedule. 7
MoNTA!iA. — (9) 18; (10) 24; (11) 28; (12) 33; (13) 40; (14) 43, (15)48;
(16) 50; (17) 52; (18) 56; (19) 61; (20) 63; (21) 69; (22) 74; (23) 75;
(24) 81; (25) 87; (26) 91; (27) 94; (-28) 98; (29) 101.
Nebraska. — (22) 3; (23, 24) 8; (25) 13; (26) 18; (27) 20; (28, 29) 26; (30)
27; (31) 28; (32, 33) 29; (34) 33; (35) 37; (SG) 38; (37) 40; (38) 41;
(39, 40) 42; (41) 43; (42, 43) 47; (44) 48; (45, 4G) 50; (47) 53; (41, 48)
58; (49) 59; (50) 61; (51, 52) 66; (53) 68; (54) 69; (55) 70; (56) 71;
(57) 73; (58) 76; (59) 80; (60) 83; (61) 87; (62) 89; (63) 93; (64) 97;
(65) 101.
Nevada.— (19) 3; (20) 19; (21) 37; (22) 58; (23) 62; (24) 77; (25) 83; (26) 99.
New HAMP.SHIRE. — (64) 10; (62) 13; (65) 23; (66) 49; (67) 68; (68) 73;
(69) 76; (70) 85; (7l) 93; (72j 101.
New Jersey. — (43 N. J. Eq.) 3; (44 N. J, Eq.) 6; (50 N. J. L.) 7; (51
N. J. L.; 45 N. J. Eq.) 14; (46 N. J. Eq.; 52 N. J. L.) 19; (47 N. J.
Eq.) 24; (53 N. J. L.) 26; (48 N. J. Eq.) 27; (49 N. J. Eq.) 31; (54
N. J. L.) 33; (SON. J. Eq.) 35; (55 N. J. L.) 39; (51 N. J. Eq.) 40; (bH
N. J. L.) 44; (52 N. J. Eq.) 46; (57 N. J. L.; 53 N. J. Eq.) 51; (54 N. J.
Eq.; 58 N. J. L.) 55; (59 N. J. L.) 59; (55 N. J. Eq.) 62; (60 N. J. L.)
64; (56 N. J. Eq.) 67; (61 N. J. L.) 68; (62 N. J. L.) 72; (57 N. J. Eq.)
73; (63 N. J. L.) 76; (58 N. J. Eq.) 78; (64 N. J. L.) 81; (39, 60 N. J.
Eq.) 83; (65 N. J. h.) 88; (61 N. J. Eq. ; 66 N. J. L.) 88; (62 N. J. Eq.)
90; (67 N. J. L.) 91; (63 N. J. Eq.) 92; [GS N. J. L.) 93; (64 N. J. Eq.)
97; (69 N. J. L.) 101.
Nbw York.— (107) 1; (108) 2; (109)4; (110)6; (111) 7; (112) 8; (113) 10;
(114) 11; (115)12; (116, 117)15; (118, 119)16; (120)17; (121)18; (122)
19; (123) 20; (124, 125) 21; (126) 22; (127) 24; (128, 129) 26; (130.
131) 27; (132, 133) 28; (1.34) 30; (135) 31; (136) 32; (137)33; (1.38) 34
(139) 36; (140) 37; (141) 38; (142) 40; (143) 42; (144) 43; (145) 45
(146)48; (147)49; (148)51; (149)52; (150)55; (151)56; (152)57
(153) 60; (154) 61; (155) 63; (156) 66; (157) 68; (158, 159) 70; (160)
73; (161, 162) 76; (163, 161) 79; (16.')) 80; (166, 167) 82; (168) 85;
(169, 170) 88; (171) 89; (172) 92; (173) 93; (174) 95; (175) 96; (176) 98;
(177) 101.
North Carolina. — (97, 98) 2; (99, 100) 6; (101)9; (102) 11; (103) 14; (104)
17; (105) 18; (106) 19; (107) 22; (lOS) 23; (109) 26; (110) 28; (111) 32
(112) 34; (113) 37; (114) 41; (115) 44; (116) 47; (117) 53; (118) 54
(119) 56; (120) 58; (121) 61; (122)65; (123) 68; (124) 70; (125) 74
(126) 78; (127) 80; (128) 83; (129) 85; (130) 89; (131) 92; (132) 95
(133; 98; (131) 101.
North Dakota. —(1) 26; (2) 33; (3) 44; (4) 50; (5) 57; (6, 7) 66; (S) 73;
(9) 81; (10) 88; (11) 95.
Ohio. —(45 Ohio St.) 4; (46 Ohio St.) 15; (47 Oliio St.) 21; (48 Oliio St.) 29
(49 Oliio St.) 34; (50 Ohio St.) 40; (51 Ohio St.) 48; (52 Ohio St.) 49
(53 Ohio St.) 53; (54 Ohio St.) 56; (55, 56 Ohio St.) 60; (57 Ohio St.) 83
(58 Ohio St.) 65; (59 Ohio St.) 69; (60 Ohio St.) 71; (61 Ohio St.) 76
(62 Ohio St.) 78; (63 Ohio St.) 81; (64 Ohio St.) 83; ((15 Ohio St.) 87
(m Ohio St.) 90; (67 Ohio St.) 93; (68 Ohio St.) 96; (69 Ohio St.) 100
(70 Ohio St.) 101.
Orf.oon. — (15) 3; (16) 8; (17) 11; (18) 17; (19) 20; (20)23; (21) 28; (22)
29; (23) 37; (24) 41; (25) 42; (26) 46; (27) 50; (28) 52; (29) 54; (30)
Schedule.
60; (31) 65; (32) 67; (33) 72; (34) 75; (35) 76; (30) 78; (37) 82; (38)
84; (39) 87; (40) 91; (41) 93; (4:;) 95; (43) 99.
Pennsylvania. — (115, 116, 117 Pa. St.) 2; (118, 119 Pa. St.) 4; (120, 121
Pa. St.) 6; (122 Pa. St.) 9; (123, 124 Pa. St.) 10; (125 Pa. St.) 11; (126
Pa. St.) 12; (127 Pa. St.) 14; (128, 129 Pa. St.) 15; (130, 131 Pa. St.) 17;
(132, 133, 1.34 Pa. St.) 19; (135, 136 Pa. St.) 20; (137, 138 Pa. St.) 21;
(139. 140, 141 Pa. St.) 23; (142, 143 Pa. St.) 24; (144, 145 Pa. St.) 27;
(146 Pa. St.) 28; (147, 150 Pa. St.) 30; (151 Pa. St.) 31; (148 Pa ■'^t^^ ^
St.) 51; (174, 175 Pu. St.) 52; (176 Pa. St.) 53;
(177 Pa. St.) 55; (178 Pa. St.) 56; (179, ISO Pa. St.) 57; (ISI Pa. St.)
59; (182 Pa. St.) 61; (1S3, 184 Pa. St.) 63; (1S5 Pa. St.) 64; (186 Pa.
St.) 65; (187 Pa. St.) 67; (188 Pa. St.) 68; (189 Pa. St.) 6?; (190 Pa.
St.) 70; (191 Pa. St.) 71; (192 Pa. St.) 73; (193 Pa. St.) 74; (194 Pa.
St.) 75; (195 Pa. St.) 78; (196 Pa. St.) 79; (197 Pa. St.) 80; (198 Pa.
St.) 82; (199 Pa. St.) 85; (195, 200 Pa. St.) 86; (201 Pa. Si.) 88; (2U2
Pa. St.) 90; (20.3, 204 Pa. St.) 93; (205 Pa. St.) 97; (206 Pa. St.) 98;
(207 Pa. St.) 99; ("JOS Pa. St) 101.
Rhode Island. — (15) 2; (16) 27; (17) 33; (18) 49; (19) 61; (20) 78; (21)
79; (22) 84; (2.3) 91; (24) 96.
Sorni Carolina. — (26) 4; (27, 28, 29) 13; (30) 14; (31, 32) 17; (.33) 26
(34) 27; (.35) 28; (36) 31; (37)34; (38) 37; (.39)39; (40) 42; (41) 44
(42) 46; (43) 49; (44) 51; (45) 55; (46)57; (47) 58; (48) 59; (49) 61
(50) 62; (51) 64; (52) 68; (53) 69; (54) 71; (55) 74; (56. 57) 76: (.)S) 79
(59) 82; (60, 01) 85; (62) 89; (63) 90; (61) 92; (65) 95; (ChY) 97; (67)
100.
South D.vkota. — (1) 36; (2) 39; (3) 44; (4) 46; (5) 49; (0) 55; (7) 58;
(8) 59; (9) 62; (10) 66; (11) 74; (12) 76; (13) 79; (14) 86; (15) 91.
Tennk.sske.— (85) 4; (80) 6; (87) 10; (88) 17; (89) 24; (90) 25; (91) 30
(92) 36; (93) 42; (94) 45; (95) 49; (96) 54; (97) 56; (9S) 60; (Wj 63
(KX)) 66; (101) 70; (102) 73; (1(«) 76; (104)78; (105) 80; (lOli) 82
(107) 89; (108) 91; (109) 97; (110) 100.
Tk.x.as. —((JS) 2; (69; 24 Te-x. App.) 5; (70; 2,5, 26 Tex. App.) 8; (71) 10;
(27 Tex. App.) 11; (72) 13; (73, 74) 15; (75) 16; (76) 18; (77; 28 Tex.
App.) 19; (7S) 22; (79) 23; (29 Tex. App.) 25; (hO, 81) 26; (82) 27;
(30 Tex. A].]).) 28; (83) 29; (84) 31; (S5) 34; (31 Tex. Cr. Itep,; .S6i 37;
(86; 32 T.x. Cr. IWy.) 40; (87; 33 Tex. Cr. lien.) 47; (34 Tex. Cr.
p. P.; s^i 53; (89, 90) 59; (35 T.x. Cr. K"p.) 60; (3l) Tex. Cr. I'v.'p.) 61;
;91; 37 Tex. Cr. Jlep.) 66; (38 Tex. Cr. llei..) 70; (9J) 71; (3:) T.x. Cr.
Hep.) 73; (40 Tex. Cr. lien.) 76; i9;i) 77; (94) 86: (95)93; (41,42,
43 T.x. Cr. l;.!..)96; (96)97; (44 Tex. Cr. j;.'p.) 100.
Utah. -(13,1 57; (14)60; (15) 62; (10) 67; (17)70; (18)72; (19)75; (20)
77; (21) 81: (22) 83; (23)90; (21) 91; (25) 95; (26) 99; (27) 101.
Vkkmont. — (60) 6; (6!) 15; ((i2) 22; ((i3) 25; ((34) 33; (65) 36: (ti6) 44;
i-;7) 48; i6i; 54; (69) 60; (70; 67; (71j 70; (72; 82; (73) 87; (74J 93;
(7.M 98.
Schedule.
ViEQlNiA. — (82) 3; (83)5; (84)10; (85)17; (86)19; (87)24; (88)29; (89)
37; (90) 44; (91) 50; (92) 53; (93) 57; (94, 95) 64; (9G) 70; (97) 75;
(98) 81; (99) 86; (100) 93; (101) 99.
Washington. —(1) 22; (2) 26; (3) 28; (4) 31; (5)34; (6) 36; (7) 38; (8)
40; (9) 43; (10) 45; (11) 48; (12) 50; (13) 52; (14) 53; (15) 55; (l(i) 5S
(17) 61; (18) 63; (19) 67: (20) 72; (21) 75; (22) 79; (2;i) 83; (-li) 85
(25) 87; (26) 90; (27) 91; (2S, 29) 92; (30) 94; (31) 96; (32) 98; (33) 99
(34) 101.
West Virginia. — (29) 6; (30) 8; (31)13; (32,33)25; (34) 26; (.35) 29;
(36) 32; (37) 38; (38, 39) 45; (40) 52; (41) 56; (42) 57; (43) 64; (44)
67; (45) 72; (46) 76; (47) 81; (48) 86; (49) 87; (50) 88; (51) 90; (52)
94; (53) 97.
Wisconsin. — (69j 2; (70, 71) 5; (72) 7; (73) 9; (74, 75) 17; (76, 77) 20; (7S)
23; (79) 24; (80) 27; (81) 29; (82) 33; (S3) 35; (84) 36; (85, 86) 39^
(87) 41; (SS) 43; (89) 46; (90) 43; (91) 51; (92) 53; (93) 57; (94) 59
(95) 60; (96, 97) 65; (98, 99) 67; (100) 69; (101) 70; (10_') 72; (103) 74
(104, 105)78, (106)80; (107, lOS) 81; (lOJ) 83; (110) 84; (HI) 87
(11-2) 88; (113) 90; (114) 91; (115) 95; (116) 93; (117) 98; (118) 93
(119) 100.
Wyoming. — (3) 31; (4) 62; (5) 63; (6) 71; (7) 75; (S) 80; (9) 87; (10) 98;
(11)100.
AMERICAN STATE REPORTS.
TOJL. 101.
CASES REPORTED.
N'AUB.
Abbott V. Thorne . . .
Report.
34Wasli. (J92.
Subject.
\ Mdlicioiis ,
( /'ronccii/ion \
Aigeltinger v. Einstein Crcdit'tr's Hill 14:? C:il. ('i()',>. . .
American Nat. Bank v. M.irey . . . . BiUilimj 113 Ky. 857 . . .
Ainei ican Tradiiicf etc. Co. v. / , , , ,.,.> i a—
(loitstem S ■'
Ancient Order of Hibernians v, \ r,, . , .i,, m . i-,.,
hparrow )
Andia-son v. Cieaniery Packairc ^ ,. q r i i .inn
,,. ,, -^ ° \-bsurii 8 Idaho 'JOO
M ig. L o \ •'
Anni.stoii Electrical etc. Co. v. / ,., . . ., , nn »i , ,.,
,, , ^ - hh'.tricdy I o'J Ala. 44'_'. .
Hewitt \ ^
Ballard v. Way Jiuhjmcnl ."U Wa-h. 1 1 1
Bank of Ukiah v. Jiicc Convcr.<ion 14H Cal. '_'().'). .
liannock Cmintj' v. Bell Limitations 8 Idaho, 1 . .
J'.arrliebL Matter ol B-ndiwj 177N. Y. :i^7
Jiaxt.'r V. I'rilcliard S'^dntv <</ Fniud<. . . 1 '-"J Iowa, .j'.iu
J'.. •<■!),■ V. .Ma.;onn 'J'ajyitiuu J --"J Iowa, 94 .
lioede V. Wi-consin Cent. lly. Co. .Carri'rs VK.) ^linn. ."JG .
B./i.Uer V. Ki.Mg l\i.rlij-ir.dl 'IW 111. 'MVl. . .
L'OS I'a. St. •_'i;l'
Jjiair V. >U|'renio ( oimumI Am- / ,, ■. .^ ■ ,
(Th an Ji -jioii 01 ii'.n.'r \
lli.nn V. S.'liw arz /)i"ii,it!/ ) 77 N. Y. 'J .")•_'
iViock V. S -iiw .11/ ('oii-/ifi(ti''i!<u /.("/•. . 27 Uiah, 387
iioard::i . u v. I I -.s . id /.r, ;,,■,-,,■ HO -Minn. L'7;i
I', .11 1 V. r. in (;>ji^ 7--' X. n. 4(4.
l;i;rU,y, liirr Coii'-nil-'l Hi. <;.,//.. 8 Idaho, .";»7
lir_'j^ V. N.w \'frU ('int. iMc. /
U. IL. <'o.
. w II \ . r '
Hfidcuce 177 X. Y. .3!»
Count V l>r F'Vl,; Olitr, r
Vl'l Iowa, 74.'j.
C 11. r V. \Vh I'- I'ariitioii 134 X. C. 4i;i).
C'hi .-ti-n.M,n V. U;o diiiii.' etc. ) , ,, . ,, , .,- ... , , .,.,
,, ,. r AasidiivIiuii " /ii-dc. . 2i Utah, l.i'J
it_. . * o ) ' •'
(lU)
I'AGK.
10-' 1
131
379
3 hi
503
188
42
(»',»;;
1 1>
14 )
M4
2.") it
3'JO
24ti
93 »
Smi.
971
4011
(iMi
2 1 .')
7I'>
853
945
Gases Eeported.
11
Namk. SuBJKcr.
Cole V. Richards Irrigation Co Waters
Consterdine v. Moore Mortgage
Cooley V. Barker Judytnent
Comity of Harlan v. Whitney Surelynhiji
Cowan V. Roberts Guaranty
Cowan V. Western Union Tel. Co. . Telegraph Co)7ipany .
Crane v. Bennett Libel
Crawford v. Meis jf'dx Title
Cundey v. Hall Partnership
Engbretson v. Seiberling -j
De Ceofroy v. Merchants' Bridge \of. ,
etc. Ky. Co J '
Di Nola V. Allison , Judgment
Duval V. Atlantic etc. R. R. Co. . .Negligence
Elliott V. Hawley Married Women . . .
Accord ayid \
Satisfaction \
Enright v, Oliver Felloiv- servants . . . .
Fawcett v. Town of Mount Airy. . .Mun. Corporation . .
Geneva v. Burnett Evidence
Gibbons v. Ebdiug Ea.-ieintnt
Graham v. Partee Corporat/o)id
Green v. Los Angeles etc. Ry. Co. . Raiboads
Harrison Nat. Bank v. Austin . . . .Agency
Havens v. Stiles Sunday
Hoavey v. Commercial Xat. Bank. . Banking
Heideoamp v. Jersey C.ty etc. ) .^^ -^^.^.^
Ry. Go )
Hendry v. Xi>ri.n Hampton IJighwai/s
Heppe V. 8zczep;itiski. Judicial Sales
TT JT ci I 1 ,- \ Independent )
Hdti v. ahockley ■{ ' ,, , ^ I
■' ( Contractor \
Home Ins. Co. v. Koub lu.-inrance
Horau v. Byrnes Spite Fence
Humphres s v. State Taxation
Illinois Cent. R. 11. Co. v. Man ion. .Ecidence
Jones V. Kansas City etc. R. R. Co. . Il<tilroads
Jones v. McNealy ReJ'onnation
Kipp V. Bui'Lon Execution
Kirkel)y v. Kriukson Statute of Ercudf. ,
Klugiierz v. Chicago etc. Ry. Co. . .Uailicay Depot
Lcigli V. Green Tajyition
Leiiijert v. Clianinel Ex< culion
L.sterv. Higlibwid Boy (Job! Min
Rbport.
Pagk.
27 Utah, 205 .
. 962
65 Neb, 291 . .
, 620
Vl-2 Iowa, 440 .
. 276
65 Neb. 105..
. 610
134 N. C. 415 .
. 845
122 Iowa, 379 .
. 268
177 N. Y. 106 .
. 722
123 Iowa, 610..
. 337
208 Pa. St. 335
. 938
179 Mo. 098. ..
. 524
143 Cal. 106...
. 84
134 N. C. 331 .
. 830
34 Wasl). 585.
.1016
12-2 Iowa, 522. .
. 279
69 N. J. L. 357. 710
134 N. C. 125..
. 825
65 Neb. 464 62S
70 Oiiio St. 2<J8 . 900
139 Ala. 310 32
143 Cal. 31 GS
65 Neb. 632 639
8 I.iah.), 250. . . 195
27 Utah, 222 ... 966
69 N. J. L. 284. 707
72 N. H. 351 ... 6S1
209 111. 68 221
!22 Iowa, 720.... 289
113 Ky. 3G0 354
72 N. II. 93 .... G70
70 Oluo .St. 67. . S8S
113 Kv. 7...
. 345
178 .Mo. 528 4;u
139 Aia. 379 38
29 .Mont. 90 5J4
90 .Mum. 199 ... 411
90 .Mum. 17 3S4
, G4 .\cb. .".33.... 592
208 I'a. St. 229 .. 931
Co.
Crops 27 C Laii, 470 . . . S6:i
12 Cases Reported.
Namk. Subject. Rbpobt. Page
Lexington v. Thompson Local Qoi^ernment . . 1 13 Ky. 540 361
Long V. Illinois Cent. R. R. Co. . . .Ax>iU)npiion o/Jii^k .113 Ky. 806 37-1
McClurg V. Brenton Search and Seizure . 123 Iowa, 368.. . . 3'23
McHatton v. Rliodes Jud'jnient 143 Cal. '275 125
Mallin V. Weiiiiain Bankncptcy 200 111. 252 233
Mayor of B.rnungham v. Birming- } ^ j3g ^^^ ^..j ^g
liain \N aterworus Co |
Mecliaiiicks Nat. Bank v. Coiniiis. .Insurance 72 N. H. 12 ... . 650
Meclianics' Bank v. Chardavoyne . .Bills and Notes .... 60 N. J. L. 256. 701
Merrill v. Wright W lil of Asaidance. . 65 Neb. 794 645
Millikin v. Cannichael Homeslead 139 Ala. 226 .... 29
Miliier & Ketti<r Co. v. De Loach
, ,, r Trover 139 Ala. 645 63
Murray v. Boston etc. R. R Assii luplion of liislc. 72 N. II. 32 660
Murray v. Wilcox Process 122 Iowa, ISS. . . . 263
Nash V. Clark Eminent Domain ... 27 Utah, 158 .. . 95.S
Nelson V. First Nat. Bank Limitations 1 39 Ala, 578 52
i'arks V. St. Louis etc. Ry. Co Street Railway 178 Mo. 108 425
People V. Adams Jury 143 Cal. 208 .... 92
People V. Locluier La/tor Laivs 177 N. Y. 145. . . 773
Perry V. Td/av L'm]>loye/s Liidjiliti/ 90 Minn. 431 .. . 4)6
Pioneer Irrigation Dist. v. ]iv<id\i^:y .Con-'titutional Law.. 8 Itlaho, 310... 201
Pinter V. Plymouth Cold Mm. Co. .Corvoralions 29 Mont. 347... 569
Reed, In re Sentence 143 Cal. 634 i:i8
lloljerson v. Tippie J/omes/ead 2U9 111. 38 217
Uudinan V. Robinson \ Syeroic I ^.j^ -j^^^ ^,_ -^^.^ y--,
( rerjormance \
Sanders V. Frankfort etc. Ins. Co .. Insurance 72 N. H. 485... 6.^8
Say lor v. Parsons Ne(jli<jei>ce 122 Iowa, 679,. . 2^3
Scheifert v. Brie;,'el Accretion 90 Minn. 125. . . 399
.Scluroacli V. McDonald J/ijuiict/on 179 Mo. 163 4.'/2
Siiulbv V. Creightoii Jnd/ciiU Sale 6o Neb. 485 63U
Suns V. State Eridcnce 139 Ala. 74 ]7
SparK.s V. Hurley Gifts 2US Pa. St. 166. . 926
Stale V. Cliicago etc. Ry. Co Penalties 122 Iowa, 22. . . . 254
St lie V. Clark ln.<a:iity 34 Wasii. 4S5. . . 10 o
St it.' V. l»r. \v Larreny 179 Mo. :il.". 474
Stat- V. ( iliiiieiiiaua Inee.st 34 Wa.sli. 221 . . 1001
Slate V. K' I. rl Ins ttiity 29 .Mont. 508 . . . 579
.^t ate V. P.ie R<lhery 1 23 Iowa, 1 LS -Mr,
Mate V. K:ipii lel liiir'jlury 123 lowa, 452. . . 3,34
state V. S,,u;m Park (Juo \V<urai,(o 34 \V,-isli. liii'... ItiiS
M it<.- V. V.MiiiLj; l/-x.« 1311 Ala. !;;() -Jl
>;. bl.iii.s V. p. tty hrr.ls 209 111.29! ^'4:!
.->t..!ie V. .M ii-li ill Oil Co V<nifuyioii ofdoods. .208 Pa. St. S5 <)04
."ilraiid V. .\mcncun Pubiisliei-.T'.\.s-ii..l/c/«"2'"'y 177 N. Y. 473. .. bl'J
Cases Reported. 13
Namk. Subject. Report. Page.
Sullivan v. Minneapolis etc. Ry. Co. Railway Depot 90 Minn. 390. . . 414
Supreme Lodge K. & L. of H. v. ) ,■ ^„„ ,,, „^_ „.,„
Menkliausen ^Insurance 209 111.2/7 239
Teske v, Dittberner Wills 65 Neb. 1G7 614
Trice v. Shipton Wills 113 Ky. 102 35]
Wright V. Austin Highway 143 Cal. 23t3 97
Young V. Sheldon Married Women 139 Ala. 444 44
AMERICAN STATE REPORTS.
VOLUME 101.
as)
CASES
IN THE
SUPREME COURT
ALABAMA..
SIMS V. STATE.
[139 Ala. 74, 36 South. 138.]
HOMICIDE — Expert Evidence as to Character of Wound. —
A physician who attended the deceased after he had received the
wound which caused his death, is competent to state his opinion as
to whether or not the wound was fatal, (p. IS.)
HOMICIDE — Evidence of Dying Declarations. — Oral evidence
may be received of dying declarations made by the deceased and re-
duced to writinc^, but not signed by him. (p. IS.)
EVIDENCE — Dying Declarations. — To render dying declara-
tions admissible, it is only necessary that they be made after the
infliction of a mortal wound, and after hope of recovery was aban-
doned by the declarant, and after he realized his impending death,
(pp. 18, 19.)
EVIDENCE. — Dying Declarations of a deceased made and writ-
ten when he has not lost all hope of recovery, but reaffirmed by him
as true and correct, after he realized his impending death, and while
he was in full possession of his mental faculties, are admissible in
evidence, although not read over to the declarant at the time he re-
affirmed their correctness, (p. 10.)
EVIDENCE of Absent Witness. — The testimony of a witness
given at a preliminary examination, with opportunity for cross-exam-
ination, is not admissible upon the subsequent trial merely upon
proof of the absence of the witness from the state. To make such
testimony admissible it must be shown that the witness is cither
a nonresident or permanently absent from the state, or that he is
absent such a length of time as to make his return contingent and
uncertain, (p. 19.)
HOMICIDE — Evidence that Deceased Carried Weapon. — On a
murder trial, it is not competent to prove by a witness other than
the accused that the deceased was in the habit of carrying a jjistol,
unless such fact is traced to the knowledge of the accused, (p. 20.)
EVIDENCE — Dying Declarations. — What weight should bo
given to dying declarations is for the determination of the jury
alone, (p. 20.)
Am. St. Kep. Vol. 101—2 (17)
18 American State Ekports^ Yol. 101. [Alabama,
Knox, Bowie & Dixon and Lackey & Bowling, for the appel-
lant.
'^\. Wilson, attorney general, for the state.
'''' TYSO^J", J. Tlie matters presented for review by the
record in the case involve rulings by the trial court upon the ad-
mission and exclusion of evidence and the refused of certain writ-
ten charges requested by the defendant. Proceeding to consider
the exceptions taken to the admission of evidence, the first of
these relates to the testimony of the physician who attended the
deceased after he had received the wound which caused his death,
in which the witness was permitted to state in his opinion the
wound was fatal. There was no error in this: Simon v. State,
108 Ala. 27, 18 South. 731; Page v. State, Gl Ala. IG.
Assuming for the purposes in hand that the dying declarations
vrliich were reduced to writing, but not signed by th.e declarant
were not lost, hut actually in the possession of the prosecuting
attorney, the objection taken to the oral proof of them because
of tlie writing is without merit: Kelley v. St:ite, 52 Ala. oGl ;
Anderson v. State, 79 Ala. 5; Darby v. State, 92 Ala. 9. 9 Snutli.
429; Jarvis v. State, 138 Ala. 17, 31 Soalh. 1025. Tlie defend-
ant relies upon Boulden y. State, 102 Ala. 78, 15 South. 3-il, as
su])p(;rting his o])jection. It must be admitted that this case is
not in accoril with tho,=:e cited above, if the writing evidencing
the declarations was not signed by the declariint, which fact is
not shown either in the statement of the facts by the reporter or
by the learned judge in his oidiiion. ]f sucii was the fact, tiio
decision is wrong, and we must decline to follow it. We are not
prepared to concede its correctness if the fact was that the de-
clarant signed the writing.
Two other r):ije;-tions were interposed to th,e admission oC the
dying deeiariitinns as testified to by some of the witnesses exam-
ined on belialf of the st;ite. They were these: 1. It did not i\\)-
j'car that the declarant was conscious of his condition, and
was riitirelv wiilmut l;o])e of i'eco\-ery ; 2. Tl'.at it appeared that
he Wi;s not in a condition to in:i';o an intelligent statement.
''^ It is undoubtedly true that it is not the condition of the
declarant as known to his fannly or his attending physician, that
nuikes his declarations adnnssiblc. 'Tt is essential to their ad-
missibility th.at, at the time when they are made, the declarant
sh.ould have l)'cn in actual danger of death, that he should then
have had a full apprehension of his danger, and that death has
ensued": 1 Taylor oii Evidence. 718. '•It is the imptression of
Teh. 190-1.] Sims v. State. 19
impending death, and not the rapid succession of death in point
of fact, which renders the testimony admissible": Pulliam v.
State, 88 Ala. 3, G South. 840.
The evidence shows that the deceased was mortally wounded.
He died within twenty-four hours after he was shot. lie was
told by his attending physician that death was inevitable and
would soon come. It is true he seems to Jiave had some hope of
recovery the next morning after he was shot, and so expressed
himself, and to have entertained that hope when his declaration
was reduced to writing. However, subsequently, during the day
on which his declaration was reduced to writing, his attending
physician was sent for and found him in a sinking spell. Just
prior to his physician's arrival, the evidence on the part of the
state shows that he abandoned all hope of recovery, and so ex-
pressed himself. Indeed, only a short period of time elapsed
between his statement that he could not live and the arrival of
his physician to whom he almost immediately affimied the cor-
rectness of the declarations he had previously made as to the
difficulty which had been reduced to Avriting. In this respect,
the case is strikingly similar to what occurred in Johnson's case :
Johnson v. State, 102 Ala. 114, 16 South. 99. It is true there
is evidence on behalf of the defendant tending in some degree to
show that declarant never entertained the conviction that his
wound would result fatally. So, too, there is some conflict in
the testimony as to whether the declarant's mental condition was
such as that he intelligently understood what he was saying
when he made the declarations, and also when he reaffirmed their
correctness to his physician. But these matters in respect to the
question in hand were for the ''^ dctenniuation of tlie trial
judge (Ward v. State, 78 Ala. 446), and we are unalilo to affirm
that his findings with respect to them were erroneous. The dy-
ing declarations were properly admitted.
The testimony of G. K. Barnhill deposed to by him on the
preliminary trial before the committing magistrate was erron-
eously admitted. Xo sufficient predicate was laid for its intro-
duction. All that was sliovrn preliuiinary to its introduc-
tion is that he was in the state of Texas at liio time of the
trial of this cause. It is not shown infcrentially or otlierwisc
that he has left the state permanently or for such an indefmiio
time that his return is contingent and uncertain. Xon constat,
he may have been simply on a visit to Texas, and expected to
return to his homo in Alabama witliin a short period of time:
Thompson v. State, 106 Ala. 67, 17 Soutli. 512; Mitcliell v.
20 American State Reports, Vol, 101. [Alabama,
State, 114 Ala. 1, 22 South. 71; Jacobi v. State, 133 Ala. 1, 33
South. 158.
It cannot be assumed that upon another trial a sufficient pred-
icate will be laid for tbe introduction of this testimony. We,
therefore, do not deem it necessary to pass upon the other objec-
tion interposed to a certain part of it. However, as to its ad-
missibility, see Walker v. State, 52 Ala. 192, 194; Sullivan v.
State, 102 Ala. 141, 142, 48 Am. St. Eep. 22, 15 South. 264.
"WTiile it is true that in the cases of Cawley v. State, 133 Ala.
128, 32 South. 227, Xau^jlier v. State, 116 Ala. 463, 23 South.
2G, and Wiley v. State, 99 Ala. 146. 13 South. 424, it was held
that it was error not to allow the defendant to testify as tending
to su]iport his plea of self-defense that the deceased was in the
habit of carrying a pistol, wliich fact was known to him, those
cases do not go to the extent of supporting the contention that
a witness oth.er than defendant knew this fact, when such fact is
not traced to defendant's knowledge. We are unwilling to ex-
tend the principle further than is declared in those cases. There
was no error in the ruling on this point.
This brings us to a consideration of the written charges re-
fused to defendant. Cliarge 7 is argumentative, confusing, and
singles out particular portions of the testimony.
('barges 9 and 16 are so manifestly bad that it is unneces-
sary ^^ to point specially their vices. Charge 13 invades the
p]-ovince of the jury. What weight should be given dying dec-
lai-ations is for their determination alone: Kilgore v. Suuo,
74 Ahi. 7; Justice v. State, 99 Ala. 180, 13 South. 658.
Iicversed and remanded.
Dying Dcchtni lions are not required to bo in any pnrtienlar f'um.
Tlioy may bo oral or written; and, if written, tliey need not bo
Bigned. Declarations not admissible as originally made may become
adniif»sible by ratification under a sense of impending death: See
the monographic note to State v. Meyer, 80 Am. St. Rep. 642-617.
The Admixsibilitii of Evidrncr given on a former trial or iM-eliminarv
examinalion is discussed in the monographic notes to dine v. Slate,
Gl Am. St. rfon. s7:J-692; Atchison etc. K. E. Co. v. Osborn 91 Am.
St. Hop. iit2-L:i)8.
Jan. 1904.] State v. Young. 21
STATE V. YOUNG.
[139 Ala. 136, 36 South. 19.]
ARSON is an Offense against the possession, rather than the
property itself, and one who is in possession under a lease of the
building alleged to have been burned by him is not guilty of arson,
(p. 21.)
H. F. Eeese and B. J. Gayle, for the petitioner.
M. Wilson, attorney general, for the state.
*^ DOWDELL, J. The defendant was arrested on a war-
rant issued by a justice of the peace on affidavit charging him
with arson, and, upon preliminary hearing, was by a justice of
the peace committed to jail. Upon his application to the
judge of the city court of Selma he was discharged by the judge
of said city court on writ of habeas corpus. From the judgTnent
discharging the defendant the state prosecutes an appeal.
The undisputed evidence was that the defendant was in the
possession and actual occupancy under a lease of the house al-
leged to have been burned by him. Arson at common law, as
well as under the statute, is an offense against the possession
rather than the property: Heard v. State, 81 Ala. 55, 1 South.
G-±0; Adams v. State, 62 Ala. 177. The defendant was, in a
sense, during the term of the lease and while in the possession
and occupancy of the ^^"^ house, the owner. Under the above
autiiorities, and the case of Sullivan v. State, 5 Stew. & P.
(Ala.) 178, the judge of the city court properly discharged the
defendant, and the judgment will be affirmed.
ARSON— THE CRIME OF, AND WHO MAY COMMIT.*
I. What Constitutes Generally,
a. Malice, 22.
b. Burning, 23.
II. Burning Place of Imprisonment, 24.
III, Burning by Tenant, 25,
IV, Owner Burning His Own House, 26.
V. Occupation, 27.
VI. Burning by Husband or Wife, 27.
VII. Defenses, 28.
VIII. Attempts to Comiait Arson, 28.
♦I'.EFEEENCK TO MONOGRAPHIC NOTE,
Arson— What is a house within the meaning of the crime: 71 Am. St. Rep. 2GG-2C9,
22 Ameiucan State Eeports, Vol. 101. [Alabama,
I. What Constitutes Generally.
Although modified or enlarged by statute in a number of the strites,
the generally accepted definition of arson is that it consists in the
willful, malicious, and voluntary burning of the house or outhouse of
another: Mary v. State, 24 Ark. 44, 81 Am. Dec. 60, and note 65;
People V. Myers, 20 Cal. 76; People v. Fong Hong, 120 Cal. 6S5, 53
Pac. 2G5; State v. Hand, 1 Marv. (Del.) 545, 41 Atl. 192; State v.
Toole, 29 Conn. 342, 76 Am. Dec. C02; Commonwealth v. Barney, 10
Ciish. 478.
In a prosecution for arson the corpus delicti is not the fact alone
that the building was burned, but also that it was burned by the will-
ful and malicious act of some person criminally responsible for his
act, and that it was not burned by natural or accidental causes:
Winslow V. State, 76 Ala. 42; Phillips v. State, 29 Ga, 105. But a
part of the corpus delicti is the burning of the building, and if that
fact is established by other evidence, the confession of the accused
is competent to show that such burning was felonious, and that he
was the criminal agent: Winslow v. State, 76 Ala. 42; Sam v. State,
33 Miss. 347.
a. Malice is of the essence of the crime of arson, both at corimon
law and under the statutes: Jesse v. State, 28 Miss. 100; Boone v.
State (Miss.), 33 South. 72; State v. Mitchell, 5 Ired. 350, 27 N. C.
350; Thomas v. State, 41 Tex. 27. Malice is a necessary iiigrcJit'ut
ia arson, though its presence need not be specifically proven. It wi!)
be presumed by the law from the willfulness of the act. Arson is
not a crime involving any specific intent in addition to the act done.
The malicious intent to burn is the only intent required, and that is
necessarily implied in the act done unless some excuse, such as ac-
cident, appears: Morris v. State, 124 Ala. 44, 27 South. 336. If the
facts are suflicient to constitute arson in all other resj)ects, it is
immaterial whether the motive be gain, revenge, or any other kind
of malicious mischief: Peoi)le v, Fong Hong, 120 Cal. 685, 53 I'ac.
2G5. If the burning of the building is willful and malicious, tlie
n.eans used to communicate the fire thereto are immaterial, so far as
the burning of the building constitutes the crime of arson: Ovcrstreet
V. Slate, 46 Ala. 30; MeDade v. People, 29 :S\u:h. 50; Smith v. Stale,
23 Tex. A pp. 357, 59 Am. Bep. 773, 5 S. AV. 219.
It is not necessary to the conviction of a pcM'son of the ofTcn.ic of
arson that it be eslal,!ishe<l that he burned the house himself, or
n;>pli d tlie fire thereto with his own liand: People v. Trim, 39 Cal.
7.J. As one may be ])riucii)al in the crime of arson who does not
hii.Msolf apply the tor(di, ihus if he is i)reseiit aiding or abetting, ho
is ;4i.ilty as a j.rinci-ial: State v. Squaires, 2 Xev. 226.
Arson, under the statutes, is divided into degrees, and arson in the
first '^■;:ree fonsi-ts of willfully and maliciously setting fire to, or
burning in the night-time, a dwelling-house, in which there is at tlie
Jan. 1904.] State v. Young. 23
time a human being: People v. Henderson, 1 Park. C. C. 561; Dick v.
State, 53 Miss. 384; Lacy v. State, 15 Wis. 13. Thus the burning of
a building in the daytime will be punished with a less period of im-
prisonment than if perpetrated at night: Hester v. State, 17 Ga. 130;
Brightwell v. State, 41 Ga. 482. A design to produce death is not,
however, necessary to constitute the offense of arson in the first de-
gree: People V. Orcutt, 1 Park. C. C. 252. Nor is it essential that the
defendant should have set fire to the building with intent to destroy
it: People v. Fanshawe, 65 Hun, 77, 19 N. Y. Supp. 8G5, 137 N. Y.
68, 32 N. E. 1102.
Setting fire to a building, with the malicious intent that the fire
should be comiuunicated to, and should burn, a dwelling-house situated
near by, is, in law, deemed the burning of the latter, and the act con-
stitutes the crime of arson: Grimes v. State, 63 Ala. 166; Combs v.
Commonwealth, 14 Ky. Law Kep. 283, 20 S. W. 221; Hennessey v.
People, 21 How. Pr. 239; Woodford v. People, 62 N. Y. 117, 20 Am.
Eep. 4d4.
b. Burning. — To constitute the crime of arson, either at common
law or under the statutes, it is not sufiieieut that the fire be applied
or communicated to the property in the house, or to the house
itself; but such house or building, or some part thereof, must be
burned, within the common-law meaning of the word "burn":
Graham v. State, 40 Ala. 659. The burning of the house or building
neccsciury to constitute arson must be an actual burning of the whole
Or some part thereof. Neither a bare intention, nor an attempt to
burn, by actually setting fire to the building amounts to arson, if no
part is burned. But it is not necessary that any part of the building
be wholly consumed, or that the fire should have any continuance:
Mary v. State, 24 Ark. 44, 81 Am. Dec. 60. If a house is simply
scorched or smoked, and the fire is not communicated to the building,
the offense of arson is not complete: Woolsey v. State, 30 Tex. App.
346, 17 S. W. 546.
While burning is an essential element of the crime of arson, it is
not necessary that any part of the building should be actually con-
sumed by fire: State v. Dennin, 32 Vt. 158; and if any part is
burned willfully and maliciously, no matter how small the part may
be, the crime is complete, although the fire is extinguished or goes
out itself before the whole building is consumed: Commonwealth v.
Van SchaiKik, 16 Mass. 105; People v. Butler, 16 Johns. 203; Wood-
ford V. People, 62 X. Y. 117, 20 Am. Bep. 461; State v. Mitchell, 5
Ired. 350; Stnte v. Babcock, 51 Vt. 570. The building need not be
consumed by fire to constitute the offense. It will be sufficient to
show that a person set fire to the building to the extent that some
part of it v.-as on fire, unless it is made clearly to a}>pear tliat it was
accidental or was done for some object wholly ditt'erent from the
intention to maliciously burn up or consume the building: Smith v.
24 American State Reports, Vol. 101. [Alabama,
state, 23 Tex. App. 357, 59 Am. Eep. 774, 5 S. W. 219. To constitutt
arson, the least burning of the house is sufficient, as the charring of
the floor by fire to the depth of half an inch: State v. Santly, 3
Ired. 570. Hence, if an attempt is made to burn a house by light-
ing a fire, and the wood of the house is charred in a single place, so-
as to destroy its fiber, the crime is complete, even if the fire is tlieu
extinguished: People v. Haggerty, 46 Cal. 355. If a wooden parti-
tion annexed to a building is charred by fire, and in one place burned
through, it is a sufficient burning to constitute arson: People v.
Simpson, 50 Cal. 304. If some part of the house was actually on fire,
so that the substance of the wood of such portion was actually burned,
although not actually consumed, nor the substance and fiber of tho
wood actually destroyed, such burning is suflicient to constitute arson:
Conunonweulth v. Tucker, 110 Mass. 403. If the building is in some
appreciable degree burned or consumed, or fire is communicated to
the woodwork or other inflammable materials of which the building
is constructed, so that they are in some measure destroyed, aud the
building would probably have been wholly destroyed, if the fire had
not been extinguished, the facts are suflicient to sustain a charge of
arson: State v. Spiegel, 111 Iowa, 701, S3 N. W. 722. lu one case,
under a statute providing that "if any person shall, in the uiglit-
time, maliciously, unlawfully, aud willfully burn, or cause to bo
burnt or destroyed, any ricks, barns, or other houses or buildings,"
he shall be guilty of arson, it was held that the injury, to come within
the meaning of the statute, must amount, either to a total demolition
of the building, or be such as unfits it for the purpose for which it
was erected: toiale v. De Bruhl, 10 I;ich. 23.
II. Burning Place of Imprisonment.
The cases on the question as to whether a prisoner who fires a jail
for the purpose of escaping therefrom is guilty of arson or not are
in hopeless conflict and cannot be reconciled on any possible ground.
The majority hold that though a prisoner may willfully and mali-
ciously fire a jail, yet if it appears that his purpose was only so to
burn it as to make his escape therefrom with no desire or intent to
bum it down or wholly consume it, it is not the willful burning of
a building conteiuiilated by the law of arson. These decisions aro
based uj)on the fact that the intent to burn the building is ab.si'ut,
find, in its absence, the perpetrator cannot be guilty of arson: .leu-
kins V. State, 53 Ga. 33, 21 Am. Eep. 255; Washington v. Stale, 87
Ga. 12, 13 S. K. 131; I'eople v. Cotteral, 18 .Johns. 115; State v.
Mitchell, 5 Ii-e<i. 350; Delaney v. State, 41 Tex. GOl. On the other
hand, a r(\spoctable nunrDor of cases Imld that, if a prisoner confined
it', a jail sets fire to the building, with intent only to Inirn a hole
t'lrnr.^h wliii-h he may escape, not intending tliat the building
slionlil be further damaged by fire, he is guilty of arson: Luke v.
State, 49 Ala. 30, 20 Am. Eep. 200; Loekett v. State, 63 Ala. 5;
Jan. 1904.] State v. Young. 25
Smith V. state, 23 Tex. App. 357, 59 Am. Eep. 773, 5 S. W. 219,
overruling Delaney v. State, 41 Tex. 601, and reaffirmed in "Willis
V. State, 32 Tex. Cr. Eep. 534, 25 S. W. 123, holding that a prisoner
setting fire to a calaboose in which he is confined, in order to es-
cape, is guilty of arson. In Luke v. State, 49 Ala. 30, 20 Am. Rep.
2G9, the extreme view is taken that if a person confined in a jail,
for the purpose of escape, sets fire thereto, he is guilty of arson, al-
though he had no intent to consume the building by burning it,
and although he so controlled the fire that it could not burn the
building.
III. Burning by Tenant.
Undoubtedly, under the common law and under statutes which
follow the common law, arson is an offense against the possession
rather than against the property itself; and a tenant who is in pos-
session and actual occupancy of the building burned, under a lease,
cannot be guilty of arson in burning it: Sullivan v. State, 5 Stew.
& P. 175; State v. Fish, 27 N. J. L. 323. If one burns the dwell-
ing-house that he is lawfully occupying as a tenant, he cannot in
a legal sense be guilty of arson, which consists in burning the build-
ing of another, as he, in effect, burns his own dwelling-house, and
arson is a crime against the security of the dwelling-house as such,
and not as property: State v. Hannett, 54 Vt. 83. Arson at com-
mon law is an offense against the possession rather than the prop-
erty, and if the person charged with burning a building was in pos-
session and occupancy of it as a tenant from year to year, he can-
not be guilty of arson: McNeal v. Woods, 3 Blackf. 485. "At com-
mon law, arson is an offense against the possession, and, under that
law, a person cannot be guilty of arson, in setting fire to, and burn-
ing the dwelling-house while he was in lawful possession thereof,
without regard or reference to the ownership of such property":
Garrett v. State, 109 Ind. 530, 10 N. E. 570.
Under statutes in many of the states arson is a crime against
property rights as well as against the habitation. Hence a dwelling-
house or other building belonging to another person may be the sub-
ject of arson, even though it is occupied by a tenant who commits
the offense: Lipschitz v. People, 25 Colo. 261, 53 Pac. 1111; Allen
V. State, 10 Ohio St. 287; Mulligan v. State, 25 Tex. App. 199, 8
Am. St. Kep. 435, 7 S. W. 664. The statutory offense of arson may
be committed by the tenant in possession as against the owner of
the estate in fee: Kelley v. State, 44 Tex. Cr. Eep. 188, 70 S. W.
20. This appears to be held as a result of a statute declaring that
a part owner may not burn the propertj^, the tenant and his land-
lord each being regarded as having an interest or ownership in the
leased building: Mulligan v. State, 25 Tex. App. 199, 8 Am. St. Rep,
435, 7 S. W. 664. Under the statute a tenant may commit arson in
respect to tlie house of his landlord occupied by himself: State v.
Moore, 61 Mo. 276. "Were this a prosecution at common law there
2G American State EEroRTS, Vol. 101. [Alabama,
might be abundant authority found to sustain the idea that the
tenant could not be held guilty of arson in burning a house of which
he had the occupancy. For the distinguishing characteristic of ar-
son at common law is, that it is an offense immediately against the
possession, and therefore if a tenant, however short his term, set
fire to a house he occupied, it was not arson. But under our stat-
utory provisions of arson, the offense, especially in the third de-
gree, is directed, not at the possession, but at the property, of an-
other, thus avoiding many of those 'unseemly niceties' as to posses-
sion, which formerly baflled prosecutions and enabled the gnilty to
escape. Under our statute even a tenant may be convicted of ar-
son": State v. Moore, 61 Mo. 280.
IV. Owner Burning His Own House.
At oinnion law and under the statutes of a number of the states,
a person cannot be convicted of arsou in setting fire to and burning
his own house, of which he is the occupant, even though such burn-
ing is with malicious intent: People y. De Winton, 113 Cal. 403, 54
Am. St. Kep. 357, 45 Pac. 708; Bloss v. Tobey, 2 Pick. 320; State
V. Sarvis, 45 S. C. C68, 55 Am. St. Eep. 806, 24 S. E. 53, 32 L. K.
A. 647. The reason for this rule is that arson has always been re-
garded as essentially an offense against the security of the dwell-
ing or building, rather than against the property, and the right of
the owner to destroy his own dwelling or building is doubtless
founded on the right which the law accords to a man of making
such use of his property as he may see fit, so long as others are not
injured thereby: Peoj)le v. De Winton, 113 Cal. 403, 54 Am. St. Ecp.
357, 45 Pac. 70S. An occupant of a house under an adverse claim
of right thereto is not guilty of arson in burning such house:
Sullivan v. State, 5 Stew. & P. 175. It is not arson fur one per-
son to burn his own dwelling-house or other building, or to pro-
cure or demand it to be done by another, for the purpose of defnnid-
iug an insurer thereof, unless expressly made so Ijy statiito; and in
the following states the statute does not make such an act arson:
Heard v. State, 81 Ala. 55, 1 South. GIG; State v. Haynes, CG Me.
3u7, -2 Am. Iicp. 5G9; Commonwealth v. I^iakely, 131 Mass. 421;
IJobcris v. State, 7 Cold. 339; State v. Sar\is, 45 S. C. GGS, 55 Am.
St. Eep. SiiG, 24 S. E. 53, 32 L. R. A. G47. The owner of a house
may be j-'i'.ilty of arson if he sets lire to and burns it whiLo it is oc-
cupied by ano;!icr: St:ite v. Toole, :^9 Conn. 342, 76 Am. Dec. G02;
IMulli-nn v. Stit-^, 25 Tex. Ai)p. 199, 8 Am. St. Ecp. 435, 7 S. W.
CGI; State V. liannett, 54 Yt. S3; Erskino v. Coiniuonwealth, S Gratt.
624. So if an owner burns his lioiis(^ while it contains the ]trop-
erty of anotlicr, it may constitute arson: ^vlulligan v. State, 25 Tex.
A]'\>. P.'O, S Am. St. E'M,. -137, 7 S. W. CG4.
Viidi'r tlip statnte in sonie of the states, the owner of a build-
ing whicii is the subject of arson nuiy be and is guilty of that crime
Jan. 1904.J State v. Young. 27
if he maliciously fires and burns his own building. In these cases
the statute makes no distinction in reference to the ownership of
the building whether belonging to the accused or to a third person:
State V. Eobfrischt, 12 La. Ann. 382; State v. Elder, 21 La. Ann.
157: State v. Hurd, 51 N. H. 176; Shepherd v. People, 19 N. Y. .'537,
overruling People v. Gates, 15 Wend. 159; and People v. Hender-
son, 1 Park. C. C. 560; Erskine v. Commonwealth, 8 Gratt. 624. As has
already been shown, a person who has burned, or procured someone
else to burn, his own dwelling-house, with intent to defraud an in-
surer thereof, is not subject to an indictment for arson, unless ex-
pressly made so by statute: State v. Sarvis, 45 S. C 668, 55 Am.
St. Eep. 806, 24 S. E. 53, 32 L. E. A. 647. But in most of the st.ites
statutes exist which make it arson or a felony for any person to
burn his own insured dwelling-house or other insured building ma-
liciously, and with intent to defraud the insurer, or to injure him:
Martin v. State, 28 Ala. 71; People v. Hughes, 29 Cal. 257; People
V. Schwartz, 32 Cal. 160; State v. Byrne, 45 Conn. 273; McDonald
V. People, 47 111. 533; Commonwealth v. Goldstein, 114 Mass. 272;
Commonwealth v. Bradford, 126 Mass. 42; People v. Jones, 24 Mich.
215; Zhous v. People, 25 Mich. 499; Meister v. People, 31 Mich. 99;
Shepherd v. People, 19 N. Y. 537; People v. Henderson, 1 Park. C.
C. 5G0; State v. Babcock, 51 Vt. 570.
V. Occupation of the dwelling-house is an essential element of
the crime of arson thereof: Hicks v. State, 43 Fla. 171, 29 South.
631; Stallings v. State, 47 Ga. 572; State v. O'Connell, 26 Ind.
266; Page v. Commonwealth, 26 Gratt. 943. If the occupant has his
or her household effects or valuable articles in the dwelling-house,
and is temporarily absent therefrom, and such house is burned dur-
ing such temporary absence, it is the burning of an occupied dwell-
ing-house, within the meaning of the statute, although no one was
in the house at the time it was burned: Johnson v. State, 48 Ga. 116.
Willful burning of an unfinished house which was never occupied,
though designed for a dwelling, and which was not appurtenant to
any other house, is not ai'son: State v. McGowan, 20 Conn. 245, 52
Am. Dec. 336. Thus the burning of a house which has never been
occupied as a dwelling is not arson: Commonwealth v. Barney, 10
Cush. 478.
VI. Burning by Husband or Wife.
A husband living with his wife and having riglitful possession
jointly with her of a dwelling-house which she owns and thej' both
occupy, is not guilty of arson under the common law in burning su<rh
dwelling-house, although such burning was done willfully and ma-
liciously: Garrett v. State, 109 Ind. 527, 10 N. E. 570; Snyder v.
People, 26 Mich. 106, 12 Am. Eep. 302. And tliis rule is not changed
by a statute securing to the wife her separate i>roperty: Snyder v.
People, 26 Mich. 106, 12 Am. Eep. 302. But under the statute of
Indiana it has been held that if a man unlawfully, willfully, and
2S American State Eeports, Vol. 101. [Alabama,
maliciously sets fire to and burns the dwelling-house of his wife
wheiein she permits him to live with her as her husband, he is
guilty of arson, although he may have furnished the money to build
the house: Garrett v. State, 109 Ind. 527, 10 N. E. 570. And under
the same statute a wife may be guilty of arson in burning her hus-
band's barn: Emig v. Daum, 1 Ind. App. 146, 27 N. E. 322.
Vn. Defenses.
If it is clearly made out that the firing of the building was will-
ful, the intention or motive of the accused is of nO' moment, and his
slate of intoxication at the time of such firing is not only no ex-
tenuation of the crime, but is not even to be considered in inquir-
ing into his capacity at the time to have a motive or intention: Peo-
ple V. Jones, 2 Edm. Sel. Cas. 86. An acquittal on a charge of
setting fire to a gristmill is a good defense to a subsequent prose-
cution for burning its contents when both were consumed by the
same fire: State v. Colgate, 31 Kan. 511, 47 Am. Eep. 507, 3 Pae.
3-16.
VIII. Attempts to Commit Arson.
The offense of attempting to commit arson depends on the pur-
pose for which the fire was kindled, and if the kindling of such fire
would as an inevitable result have burned the building, an inten-
tion to do so may be presumed: People v. Long, 2 Edm. Sel. Cas.
liO. Thus one who places a lighted candle in and among hay and
grain in a barn, with intent to cause the barn to be burned, is guilty
of an attempt at arson, though the candle is extinguished before
nuy further burning takes place: State v. Johnson, 19 Iowa, 230.
If one solicits another to set fire to a barn belonging to a third ]ier-
son, and gives him materials for that purpose, although not intend-
ing to bo liimself present at the commission of the offense, and the
otlior never intends to commit the crime, yet the one who solicits
sucii act to be done 13 guilty of an attempt to commit arson: People
V. Bush, 4 Ilill, 133. Proof that the prisoner prepared cnniphone
and ntlior combustibles, and placed them in his room, and solicited
another to use thorn in burning a barn, promising to give him a
deed to hind for doing so, is suflleient to convict him of an attempt
;it arson: McDermott v. People, 5 Park. C. C. 102. Or if a person
solirits another to commit arson, and promises him a reward or
money therefor, and offers him matches for the purpose of starting
the firo, such person is guilty of an attempt to commit arson, al-
thoiitjli the offer is immediately ropudiated: State v. Bowers, 35 8.
C. 2 ■■2, 2S Am. St. Pep. S17, 11- S. E. 4':S, 15 L. P. A. 199. It is not
necessary to a cdnviction fur an i.ttcm'ptcd arson that any portion
of the ] iiilding should be actually burned, and it is sufficient if fire
is npidied to, or in immediate contact with, the building, with in-
Ifiit to hurn it, though such intent is not carried out: State v. Den-
U'.in, 32 Vt. 158.
Dec. 1903.] MiLLiKiN v. Carmichael. 29
MILLIKIN V. CARMICHAEL.
[139 Ala. 226, 35 South. 706.]
HOMESTEADS— Lease of— Consent of Wife.— A husband,
without consent of his wife, may lease the homestead lands for pur-
poses not interfering with the use of the property as a homestead; but
he cannot do so when the lease interferes with such use. (p. 30.)
HOMESTEADS — Lease of— Consent of Wife. — A husband
alone, and without the consent of his wife, may lease the premises
constituting their homestead for the turpentine privileges thereon,
with right of ingress and egress for the purposes of the lease,
(pp. 30, 31.)
Sanders & McGriff, for the appellants.
II. A. Pearce and E. D. Crawford, for the appellees.
2^8 TYSO^^, J. The matter of controversy between the
parties arises out of their respective claims to box and take from
pine trees gum or rosin standing upon the homestead of one
Franklin. The complainants predicate their right upon a writ-
ten instrument of date of December 8, 1899, granting to them
the right of ingress and egress upon the land for the boxing of
the trees and taking from them the gum for the purpose of
manufacturing ^^® turpentine for a designated period of tin\e
which was executed by both Franklin and his wife and properly
acknowledged by both. The acknowledgment of the wife is in
the form required for conveyances of homesteads.
The respondent asserts his right under a similar instrument,
executed by Franklin, the husband, alone on November 24,
1890, and recorded June 1, 1891.
From this statement it will readily be seen that the question
presented is, whetlicr the signature of the wife and her separate
and apart acknowledgment is necessary to the validity of the in-
strument under which the respondent claims. If not, it is en-
tirely clear that his right is superior to those of the complain-
ants.
The statute provides that ''no mortgage, deed or otlicr con-
veyance of the homestead by a married man shall be valid with-
out the voluntary signature and assent of his wife, which must
be shown by her examination, separate and apart from liim, be-
fore an othcer authorized by law to talce acknowledgments of
deeds, and the certificate of such officer upon or attached to said
mortgage, deed or conveyance," etc. : Code, sec. 203-i. Tliis stat-
ute simply restrains and limits the husband's power of aliena-
30 American State Eeports, Vol. 101. [Alabama,
tion in whom the title to the homestead is vest^jd, which is a
mere incident of his ownership: McGuire v. Van Pelt, 55 Ala.
353. He is the owner of it, and has unlimited dominion and
power over it so far as the use to which it may be put. ITo may
cultivate it, if it is susceptible of cultivation or not as he pleases
and in such manner as he may cliooso. He may, if it is timber
land, fell the timber for the purpose of making it suitable for
cultivation, or for that matter he may destroy the timber growing
upon it or he may sell it after he has felled it; and this he may
do although the doing of it may destroy the market value of the
land. He has the undoubted right to extract from the pine
trees upon it the gum or rosin without molestation or hindrance;
or to take from the trees the burrs or needles for the purpose of
sale or otherwise.
Should there be upon it an orchard of fruit trees, wlio doubts
his unqualified right to gather tlie fruit and dispose ^**^ of it
as he may choose? Or should minerals exist in or upon it, who
can question his right to mine or dispose of them? Tlie crops
he may raise u]>on it are his and tlicse he may mortgage or sell
witb.out liis v/ife's assent. In short, being the owner, tlie use to
wliich he may ])ut the land, and everything attached to it and a
part of it, is illimitable and uncontrollable.
Assuming for the purpose of this case, as seems to have Ijecn
done in Millikin v. Carmichacl, 134 Ala. G23, 92 Am. St. Ecp.
45, 33 South. 9, that the instrument under which the respondent
claims _is a conveyance of an interest in tlie land (a proposition
not decided), the principle that must control is found in 15 Am-
erican and English Encyclopedia of Law, second edition, pa;.Te
C)7L It is tliore said : ''The aulhoriiics are not uniform as to
the riglit of tlie husband alone to lease the homestead premises,
for this right has I'oen both adirmed and denied. The most
satisfactory rule would seem to be that the husband alone may
lease the homestead lands for purposes not interfering with the
use of the propertv as a homestead, hut cannot do so when the
lease intcrft'res wiih such possession and enjoyment of the prem-
ises l)y the wife.''
Mr. Thompson, in his work on Homestead and Exemptions,
(section 4'lj, stales the same rule in this language: "lUit the
hushand may, v,ithout the consent of the wife, give leases of
houie.-tt'ad lands which do not interfere with their use and oc-
cupauev as a homestead and also licenses to cut timher, (juarry
sione, reii ove minerals and the like,'' elc. : See, also, W'aples on
Dec. 1903.] MiLLiKiN v. Carmichael. 31
HomestcacI and Exemptions, sec. 433; Smj-th on Homestead and
Exemptions, sec. 303; Harkness v. Burton, 39 Iowa, 101;
Coughlin V. Coughlin, 26 Kan. 116.
Under this rule the rights of the husband as owner are fully-
protected and conserved and no right of the wife violated.
In the absence of averment and proof that the exercise of the
privileges granted to the respondent interfere with the use and
occupancy of the land as a homestead, it cannot be affirmed that
it does. It is not even shown that the extracting of the gum or
rosin from the trees ^^^ deteriorates their value, much less dim-
inishes the value of the land or otherwise impairs its value as a
homestead; non constat, its value may be enhanced and its use
and occupation as a homestead rendered more valuable. The
case of McKenzie v. Shows, 70 Miss. 388, 35 Am. St. Eop. 654,
12 South. 336, cited by appellants, involved the validity of a
conveyance by the husljand of all the timber of a designated
size grov.-ing on the land, no time being fixed for its removal.
The question presented was whether the conveyance was an en-
cumbrance of tlie homestead. The court held that growing trees
are a part of the realty; that the conveyance vras an encumbrance
and that the wife should have joined in it. Stress was laid in the
opinion upon the fact that there was a wholesale conveyance of
tlie timber with large diminution in value of the homestead.
The case of Pritchett v. Da^-is, 101 Ga. 236, 65 Am. St. Eep.
298, 28 S. E. 6GG, also cited and relied upon, is very much like
the Mississippi case.
The point involved in Millikin v. Faulk, 111 Ala. 653, 20
South. 59-1, was whether the lease, which was of the same char-
acter as these, was an unconditional conveyance of real property
witliin the meaning of section 1005 of the Code. It was held
tliat it was. Xeithcr of these cases are in point. "What we have
said in no wise conflicts with McGhee v. Wilson, 111 Ala. 615,
56 Am. St. Eep. 72, 20 South. 619, which liolds that the con-
veyance of a right of way to a railroad through the homestead in
which the wife does not join is void. The distinction between
tliat ease and this one is so apparent, it is unnecessary to point
it out.
xillirnied.
The Lease of a Homestead by one spouso only is diseiissod in the
monographic note to Jerdeo v. Furbush, 95 Am. St. Eep. 926-928.
33 American State Repobts^ Vol. 101. [Alabama,
GRAHAM V. PARTEE.
[139 Ala. 310, 35 South. 1016.]
MORTGAGES — Estoppel. — If an owner of land executes a
first and second mortgage theroon, and, upon default, there is a
foreclosure by both of the mortgagees, the mortgagor is estopped to
dispute the title conveyed by his second mortgage, (p. 35.)
EJECTIMENT — Title Sufficient to Maintain. — A purchaser at
foreclosure sale of property conveyed by a first and second mort-
gage shows title sufficient to maintain ejectment against the mort-
gagor, by introducing and proving a deed of the promises from the
second mortgagee to him as purchaser at foreclosure sale. (p. So.)
CORPORATIONS — Conveyances by Presumption from Affixing
Seal. — If a corporate seal is affixed to an instrument, and the sig-
Datures of the proper corporate officers are proven, it must be pre-
sumed that such oiliccrs had the autliority which they exercised. The
seal itself is prima facie evidence that it was affixed by proper au-
thority, (p. 37.)
CORPORATIONS — Instrument Sealed but not Signed —
Evidence. — If the corporate seal is affixed to a corporate instrument,
such seal is prima facie evidence that it was thus affixed by
proper authority, and the instrument duly executed, and it is then
admissible in evidence, although the corporate name is not signed
thereto, (p. 38.)
W. R. Xclson and H. Xelson, for the appellant.
Burnett, Hood & ]\Iurpliree, for the appellee.
^^^ DOWDELL, J. There is nothing in the suggestion in
argument by counsel for appellees that the l)ill of exceptions was
signed out of time. It appears from the record that ilie l)i!l
was signed in vacation, bnt within the time fixed by the order of
the court. Xo motion was made eitlier before or at the time of
tlie sulimission of tlie case to strike from the bill of exco|)tion5,
v.hat purports to be a contract executed by Emma J. and A. ^I.
Partce for want of a sufliciont identification, and the cause hav-
ing been regularly submitted on the merits, the insistence in
argument to strike out the contract comes too late. ^Moreover,
it ajtjtears from the bill of exceptions that the contract as set
forili was regularly introduced in evidence.
The ])laiiitilf in suj)])ort of his right to recover the possession
of til*' laud sued for, introduced in evidence, as showing title in
himself, two mortgages duly executed liy the defendants, the first
on the twenty-first day of February, I'JOO, to the American
Frri'hohl Lai'd ?*l(irtgago Company of London, Limited, and tlie
eecuiid to the Loan Company of Alahama, on tlie day of
Jan. 1904.] Graham v. Partes. 33
February, ^^^ 1900. He then introduced in evidence, in order,
the foreclosure proceedings had under the powers contained in
.the mortgages, showing the advertisement, sale, and the pur-
chase by him at said sale, which were in all respects regular; the
final affidavit of Emma J. Partee made in obtaining the loan for
which the mortgage was given to secure; the receipt of the de-
fendant for the amount of the loan; the contract of the defend-
ants with the Loan Company of Alabama for securing for them
the loan. The bill of exceptions then recites: "The plaintilf
here introduced a deed executed by the American Freehold Land
Mortgage Company of London, Limited, by Francis John Pat-
ton, its attorney in fact, also the Loan Company of Alabama to
Benjamin Graham, executed on the 26th day of August, 1901,
conveying the S. W. \ of Sec. 6, T. 9, south of Eange 9 east of
Huntsville, Meridian, and recorded," etc., following this the
deed is set out. The deed is signed : "The American Freehold
Land Mortgage Company of London Limited. (Seal.) by
Francis John Patton, attorney in fact." "Loan Company of
Alabama. (Seal.) by W, E. Nelson, President." The execu-
tion is duly attested and acknowledged. The bill of exceptions
then recites : "The plaintiff then introduced a power of attorney
executed by the American Freehold Land Mortgage Company
of London, Limited, on the 21st day of June, 1893, by E.
Brodie Hoare, W. M. Cunningbame, Directors, Ernest A. Bul-
lock, Secretar}', to Cornelius Cuyler, Benjamin Graham, and
Francis Jolm Patton in words and figures as follows, to wit."
Here the power of attorney is set out, which is in the name of
the American Freeliold Land Mortgage Company of London,
Limited, a corporation duly organized and existing under and by
virtue of the laws of Great Britain, and which in terms author-
izes the execution of the power confided, by any one of the
grantees named therein. The testimonial clause of the power of
attorney is as follows, to wit: "In witness whereof the American
Freehold Land Mortgage Company of London, Limited, has
caused its corporate seal to be aliixed to these presents, and the
same to be attested, it liaving no president, "^" by its cliairman,
and also by one other of its directors, and by its secretary, at the
said city of London, this the 21st day of June, in the year
one thousand eight hundred and ninety-tliree." Tlie names of
E. Brodie Hoare, W. M. Cunningbame, directors, and Ernest A.
Bullock, secretary, are subscribed to the instrument with tjie
seal atta'-liod 1)earing tlic impress, "The American Freehold
Am. St. Rep. Vol. 101—3
34: American State Eepoets^ Vol. 101. [Alabama,
Land Mortgage Company of London, Limited, Seal," with
additional attestation by two witnesses. Accompanying and
attached to the instrument is a certificate of the L'nited States
consul general at London to the sworn statement of E. Brodie
Hoare, taken before the consul general, proving the official char-
acter of the parties signing the instrument, the genuineness of
the seal, and that the same was affixed by the authority of the
corporation; also, an acknowledgment in due form by the parties
executing said instrument, taken by the United States consul
general at London, England, on the twent3--first day of June,
1893. In addition to all of this, there was also attached a
certificate by Ernest A. Bullock, secretary, "that the foregoing
is contained in the minutes of a meeting of the board of directors
held at the office of the company the twenty-first day of Juno,
1893. For the American Freehold Land ]\Iortgage Company of
London, Limited" — signed, Ernest A. Bullock, secretary. This
instrument was duly recorded in tlic offiice of the judge of pro-
bate of Cherokee county, Alabama. The defendant objected to
the introduction in evidence of the said power of attorney, and
for grounds of their objection assigned the following: "1. Be-
cause the paitics executing the said power of attorney showed
no authority and power to execute the same; 2. Because said
power was not executed by the president of the corporation ;
because said power was not executed by the corporation;
3. Because said power of attorney docs not show that it was
executed by anyone authorized to do so by the said American
Freehold Land Mortgage Company of London, Limited; be-
cause the name of said corporation is not signed to said power
of attorney." The court sustained the objection, and the phiin-
tiff duly excepted to the ruling of the court. On the foregoing
state •'^"* of the evidence as to title, the defendants not offering
any, the court at the request of the defendants in writing, gave
tlio general charge in their favor, and to which action tlie phiin-
tiff excepted. The defendant's objection to evidence was con-
fined to the power of attorney offered by the plaintiff, and on the
s])eciric ground? as stated. After the exclusion by the court of
tlie power of attorney on defendant's ol)jection, there was left in
evidence before the jury the two mortgages exe<'uted l>y the de-
fendants, tlie foreclosure proceedings, and the deed executed to
the ])laiiitiir under the foreclosure, which was jointly executed
by ihe Loan roinpnny of Alabama, by its president, with the
American Freehold Land Mortgage Company. It is true that
Jan. 1904.] Grahaim v. Partee. 35
the Loan Company mortgage is a second mortgage, and that the
Freehold Land Mortgage Company mortgage is superior, but
the defendants are estopped to set up the defense of superior
outstanding title: Jones on Mortgages, 2d ed., sec. 719. The
mortgagors cannot dispute the title which they conveyed by their
mortgage to the Loan Company, and this title the Loan Com-
pany conveyed by its deed to the plaintiff. As showing tiile in
the plaintiff upon which to base a recovery of the possession of
the land against the defendants, mortgagors, this was sufficient :
Jones v. lieese, 65 Ala. 13L See, also, Lang v. Stansell, 106
Ala. 389, 17 South. 519; Tew v. Henderson, 116 Ala. 545, 23
South. 128. The court erred in giving the general charge for
the defendants, and should have given it for the plaintiff as re-
quested. But as the question of the proper execution of the
power of attorney by the American Freehold Land Mortgage
Company to the person who executed the foreclosure deed to tlie
plaintiff on behalf of the freehold company is now presented and
will doubtless arise on another trial, we will now consider and
pass upon the same. That the power of attorney as set out in the
record is not the act of the individuals executing it, but that of
the corporation, is, we think, quite clear. It purports on its
face, both in the statement at the beginning, and in the tes-
timonial clause, to be the act of the American Freehold Land
Mortgage Company of London, Limited. The ^^'* attesting
clause shows also that the corporation had no such ofBcer as a
president, and that the execution was by its chairman, and one
other of its directors, and by its secretary. The corporate seal
is also attached and is used as the signature of tlie corporation.
In the case of American Savings etc. Assn. v. Smith, 122 Ala.
505, 27 South. 920, it was said in an opinion by the present cliief
justice: "The testimonial to the instrument reciting that 'tlie
said party of the first part (the Oxana Building Association)
hereunto sets its hand and seal the day and year first above writ-
ten by its president, B. F. Sawyer, who is fully authorized to
execute this mortgage,' had the corporate seal been attached
the presumption would have been that the president had the
authority to execute the conveyance, and the seal itself would
have been prima facie evidence that it was afTixed bv proper
authority," citing Thorington v. Gould, 59 Ala. 465; Jinwridit
V. Xelson, 105 Ala. 405, 17 South. 93. In the case last above
cited it was said: "When the corporate seal appears to be fixed
to an instrument, and the signatures of the proper officers are
36 American State EEroiiTS, Vol. 101. [Alabama,
proved (which is shown in the present case), courts presume
that the ofiicers had the authority which they exercised, and the
seal itself is prima facie evidence that it was affixed by proper
authority." It is also said in this case, on page 401 105
Ala., and page 93, 17 South., preceding the above quotation,
that "the name of the corporation must be subscribed or signed
to the conveyance, and it must be subscribed or signed by an
officer of an agent having authority in writing"' : Citing Standi fer
V. Swann, 78 Ala. 88; Swann v. C4aston, 87 Ala. 5G9, G South.
886; and section 1789 of the Code of 1S8G, which is the same as
section 982 of present Code of 189G. This last quotation from
Jinwright v. Nelson, 105 Ala. 405, 17 South. 93, and the cases
there cited of Standifer v. Swann, 78 Ala. 88, and Swann v.
Gaston, 87 Ala. 569, 6 South. 886, are relied on by appellees
here in support of the ruling of the court 1-clow. In Swann v.
Gaston, 87 Ala. 569, 6 South. 88G, the instrument in question
was signed "Ijy J. C. Stanton, general superintendent and at-
torney in fact." It docs not appear that any seal of the corpora-
tion was attached. Tlie court said : '"Tlicre l^eing no evidence of
any written autliority from the governing body of tlie company,
for which Stanton purported to ^^*^ act as agent, to execute the
deed, it conveyed no legal title or <\-tate to tlio defendant":
Citing Standifer v. Swann, 78 Ala. 88. In this last case, as in
87 Ala., the instrument in question purported to l)e signed by
the railroad company, "by J. C. Stanton, general superintendeiit
and attorney in fact." No corporate seal was attaclied, so far
as it appears from the report of tlie case. Tliis coTirt there said,
speaking through Somerville, J.: "In this state, all conveyances
for tlie alienation of lands are required to be written or printed
on parchment or paper, and must lie signed at their foot Ijy the
grantor, or contracting party, and if the conveyance is made l)y
an agent, he is required by the statute to have 'a written autlior-
ity' "; citing section 2145 of the Code of 1876, which is the same
as section 982 of the present Code. "It is manifest that Jio Ixidy
cor])orate can appoint an agent to convey lands, except by the
vote of its directors, or other nuuinging board, iu wlin!n the
power to sell may be re])osed by charter, or by general law. The
defendants have failed to produce any coiq)oraie prueecMlings.
or minutes, showing the appointment of Stanton as ;!g"nt ot'
the railroad company, with authority to sell and convey the
lands. This was the host and only leg;il evidence of sueh niitlior-
ity, and in the absence of it, the deed from Stanton would be
Jan. 1904.] Graham v. Partee. 37
no evidence of title, but only color of title," etc. It is to be
observed, that in these two cases no corporate seal was affixed
to the instrument, and there was no e\idence otherwise of au-
thority in the agent. Nothing is said as to the necessity of sub-
scribing the name of the corporation to the instrument in order
to give it validity. In the case of Savannah etc. R. E. Co. v.
Lancaster, 62 Ala. 555, the deed in the statement at the begin-
ning purported to be by the railroad company, and the testi-
monial clause was as follows: "In witness whereof, the said
party of the first part has caused its corporate seal to be hereto
affixed, and these presents to be signed by its president, Samuel
Cr. Jones, and its secretary, Samuel E. Hall, in the presence
of James M. Muldon and William D. Dunn, who subscribed
tlieir names thereto as witnesses on the ^^"^ day and year first
above written." Signed, "Samuel G. Jones, President (Seal)."
"Samuel E. Hall, Secretary (Seal)." The name of the corpora-
tion was not subscribed or signed to the instrument. The fail-
ure to do so was urged by counsel in argument against the
validity of the deed, citing the statute requiring conveyances
to be signed "at the foot" by the contracting party. Tbis court,
speaking through Manning, J., said : "The sections of the code
which require conveyances to be 'signed at tbeir foot by the con-
tracting party or his agent having a written authority, and dis-
pense with seals to them,' cannot have been intended to embrace
conveyances by corporations, which, being unable to write and
have signatures of tlieir own, have always executed such in-
struments by causing their seals to be affi-xed to them. To have
a seal for such purposes has not only been the unifomi usage
of tliese bodies politic, but the right 'to use a common seal, and
to alter the same at pleasure,' is expressly conceded to them
by our statute.'-' The deed was held to have been well executed.
"A deed l)y a corporation is in proper form if expressed to be
by the corporation, naming it, by their agent, naming him, and
concliuling, 'In witness whereof, tliey,' naming the company,
'by their agent, having hereunto sot tlieir seal, and the said
agent hath hereunto subscribed his name'": 4 Thompson's
Commentaries on Corporations, sec. 5090, and note 3; Flint v.
Clinton, 12 X. H. 4oO; 2 Cook on Stockholders and Corporation
Law. sec. 722. p. 153, note 1. "In like manner the following
was well executed, as a deed of a corporation : 'In testimony
whereto, said party of the first part, have caused these presents,
and their common seal to be hereto aflixed. A. B., President/
and a corporate seal": Xote 3 of above citation.
33 American State Reports^ Vol. 101. [Alabama,
In Tliorington v. Gould, 59 Ala. 468, it is said: "Courts are
to presume that officers did not exceed tlieir authority, and the
seal itself is prinui facie evidence that it was ailixed by proper
authority." Our conclusion is, that the instrument creating
llie power of attorney, wliieh was excluded from evidence, was
eufhciently executed, and the failure to subscribe the name of
the company, ^^^ and this is the princij)al objection insisted
on, did not rendt'r it inadmissible in evidence. The judgment;
will be reversed and the cause remanded.
The Presence of the Seal of a Corporation estaLlislios, prima facie,
that the instrument to which it is aflixed is the act of tiie corpora-
tion, and dispenses with the necessity of any proof, on the ])art of
the person claiming under it, that it was executed by the proper
otEcers, that they had authority to so execute it, and that all j)ro-
ceedinjjs necessary to such authority had been duly given, unless the
corporation shall first have rebutted the presumption arising from
the presence of the seal: See the monographic notes to B. S. Green
Co. V. Blodgett, 50 Am. St. Eep. 155; Morrison v. Wilder Gas Co., fl4:
Am St. Eep. 264. The su[>reme court of ilainc, however, seems to
take a different view of tlie question: Morrison v. Wilder Gas Co., 91
Me, 492, 64 Am. St. Eep. 257, 40 Ati. 542.
JOXES V. :^leXEALY.
[139 Ala. 379, 35 South. 1022.]
DEEDS — Reformation of — Knowledge of Mistake.— Tf a Till
for tile reformation of a deed by a subsecpient purchaser ili.cs not
allege want of notice of the mistake, construing it most strongly
against the complainant, such purchaser must lie held to have known
of the mistake at the time of acquii'ing riglits under the con\-evauce.
(p. 40.)
DEEDS — Reformation of. — A purchaser is Entitled to his
grantor's right to enforco a correction of a descrijit ion in a ]ii-inr
di'c.l to a part of the I'Tcmises executed bv the grantor to auolhrr.
(p. iO.)
DEEDS -Eeform.ation of— Deeds of Gift.— Tlie right to the
refiiniintinu of a <\vei\ is not affected l:)y whether it is one of bai-gain
ancl saU', or of gift. (]!. 40.)
DEEDS— Reformation. — Possession of Premises by the ]iiir-
cliascr is not esscjitial to enable him to obtain correction of a iiiis-
tak(> in llie description contained in a prior deed to a portion of the
premises ('xe<'uted liy his grantor to anotlier. Cp. 4ii. i
DEEDS — Reformation of Laches. — Comjilainant ;'?kin;,r the cor-
lection of a mistake in a description in a deed is not j^uiliv of
Inches in bringing suit, if she has been in possession of a jiortion nf
llie premises to \vliicli she has a deed ever since its execution, and
her mortgagor and grantor has been in possession of the other por-
Jan, 1904.] Jones v. McXealy. 39
tion, and the bill is filed promptly after the defendant, who claims
title under the deed containing the mistake, discloses his intention to
disturb complainant's possession, (p. 41.)
DEEDS— Keformation of— Time of Discovery of Mistake, —
A bill for the correction of a mistake in a deed need not allege when
the complainant discovered the mistake, or that a demand or request
has been made for its correction, (p. 41.)
DEEDS — P^formation of— DeTiand for. — A bill for the cor-
rection of a mistake in description in a deed need not allege a de-
mand Or request of defendant to correct it, when defendant has in-
stituted suit in ejectment against the complainant's tenant, (p.
41.)
DEEDS — Reformation of— Relief Granted.— If a bill presents
a case for the correction of a mistake in a deed, the court will grant
full relief to the end of foreclosing a mortgage given by defendant
to complainant on a portion of the same premises, when the evidence
establishes the right to the correction, (p. 41.)
Houston & Power and G, A. Hays, for the appoUaut,
Barnes & Diilce, for the appellee,
3S3 TYSON, J. The bill, as amended, to which the de-
murrer was sustained, seeks to have a certain deed executed
by Mrs. Smith to lier dauglitcr, Mrs. ]\lcXea]y, reformed and
canceled as to a certain portion of the lot described in it and
purported to be conveyed by it and to correct the description
in the mortgage now held by complainant and to foreclose it,
and also to enjoin certain actions of ejectment instituted by Mrs.
McNealy, etc.
It proceeds, in so far as the reformation and cancclhition
of the deed under which Mrs. McXealy claims title to the
whole lot upon two theories: 1. Upon the ground of a mutual
mistake by the parties to it; and 2. In tl;e event there was no
mistake upon the ground of an estoppel in pais predicated upon
tlio conduct of Mrs. McXealy. The right of tlie complainant
to the relief she seeks is based upon two conveyances, one a
mortgage, rofen-ed to above, acquired by transfer and the other
a deed, both of whicli were executed ])y ^Mrs. Smith, conveying
a certain portion of tlie lot covered by the deed previously exe-
cuted by Mrs. Smith to her daughter.
A demurrer comprising eleven assignments was intei-posed
to the bill as amended. The chancellor, it appears, '*^^^ only
regarded the first two grounds meritorious. These two ])racti-
cally raise the same question. Tliey go to the entire bill and
challenge the riglit of the com])lainant to relief upon the
ground that it is not shown that she liad no notice or knowledge
of the alleged mistake in the deed from Mrs. Smith to lier
40 American State Reports^ Vol. 101. [Alabama,
daiiirliter. It is true the hill docs not allo.sre her want of notice
or knowledge of tlie fact. And construinor jts averments most
strongly against the complainant, it must be taken that she
knew of tlie mistake when she acquired her rights under the
conveyances she now holds. Knowing this, she also knew that
Mrs. Smith had the riglit to liave her deed to her daughter cor-
rected r Larkins v. Biddle, 21 Ala. 253; Williams v. Hamilton,
65 ^Vm. St. Rep. 514, note. Having acquired Mrs. Smith's
right to the part of the lot in controversy, the complainant takes
her place and is entitled to enforce that right in the matter of
the misdescription. This point was raised by the demurrer to
the bill in the case of Harris v. Ivey, 11-1 Ala. 363, 21 South.
422, which was filed by a purchaser, as here, to have corrected a
misdescription of the lands contained in a deed, previously exe-
cuted by his grantor to another. It was ruled to be without
merit. These grounds of demurrer were improperly sustained.
If they had been interposed solely to that phase of the bill which
relics upon the estoppel in pais we are not prepared to say
whether they are well taken or not. That question is not pre-
sented, and we, therefore, decline to express an opinion on it.
Xor for that matter are any of the ctlior grounds of demurrer
well taken, as we shall proceed to show.
The deed from Mrs. Smith to Mrs. ]\IcXealy, her daughter,
sought to 1)0 corrected, expresses the considei'ation oi live
dollars i->aid and for love and affection, and contains cov-
enant of warranty. Whetlier it is one of bargain and sale or
of gift is immaterial, since if it be one or the otlier. Mrs.
Smitli would have luul the right to have it reformed: J.arkins
V. r.iddle, 21 Ala. 252; Weathers v. Hill. 92 Ala. 492, 9 Soutli.
412. The third ground of demurrer is, therefore, not v\-ell
taken.
The title asserted by complainant l;cing equitalile, it is '^^'' i-ot
necessary for the purposes of tliis bill, that she sliould l)e in |m)S-
session. since she has no adequate remedy at law: Echols v. Hub-
hard, 90 Ala. 309, 7 South. 817, and authorities there cited.
Xor can hiehcs be imputed to her on th.e facts alleged. Com-
])!a;.";:ii!t has been in the possession of that portion of the lot
to wbieli slie has a deed ever since its execution, and the mort-
gagor, ?ilrs. Smith, also Mrs. ]\lcXealy's grantor, has all along
been in the undi.-turbed possession of tlie other portion of it.
This bill was tiled promi)tly after ^^Irs. ^McXealy made known
her intention to disturb complainant's possession. Xor is it
necessary that tlie bill should allege when complainant discovered
Jan. 190-i.] Jones v. McjSTealy. 41
the mistake in the description; or that a request or demand was
made by her on the respondent, Mrs. McXealy, to correct the
mistake before tlie bill was filed. Mrs. McNealy's attitude in the
matter of instituting the suits in ejectment excluded all expecta-
tion that had a request or demand been made upon her, that she
would have complied with it: Weathers v. Hill, 92 Ala. 492, 9
South. 412; Harrold v. Weaver, 72 Ala. 373.
The averments of the bill when taken in connection with the
stipulations contained in the mortgage sufficiently show a ma-
turity of the debt secured by it and a default on the part of the
mortgagor that entitles complainant to have it foreclosed. What
we liave said disposes of those assignments of demurrer inter-
posed by both respondents adversely to each of them.
The remaining grounds, asserted separately by each of the
respondents, attack the bill for multifariousness, but are confined
to the first phase of the bill which seeks relief on account of the
mistalce in the deed executed by Mrs. Smith to her co-respond-
ent, Mrs. McXealy.
Complainant claims an equitable title to all the lands in con-
troversy from tlie same grantor, Mrs. Smith, and also asserts
that all the lands claimed by her, whether acquired by deed or
mortgage, was by mistake included in the deed from Mrs. Smith
to ]\rrs. McXealy.
The bill properly presents a case for the exercise of the court's
jurisdiction to refoim and correct the deed, and the court will
grant full relief to the end of foreclosing tlie mortgage, if the
complainant establishes by e\'idence ^**^ her right to a correction
of tlie misdescription: Biclor v. Dreher, 129 Ala. 384, 30 South.
22; McGelice v. Lehman, Durr & Co., Go Ala. 319. Tho^e
grounds of demurrer are, therefore, not well taken.
It follows that the decree appealed from must be reversed,
and a decree will be here rendered overrulin? the demurrer.
A Deal may he Reformed so as to embrace land which was intended
to be conveyed, or to exclude land from its operation which was not
intended to bo conveyed. And if a mistake of description occnrs in
a series of conveyances, under circumstances that would entitle any
one of tlie vendees to a reformation as against his immediate ven^lor,
Ihc e(u;ity Avill work back through all, and give the last vendee a
right of reformation against the original vendor: See the monographic
note to Williams v. Hamilton, 65 Am. St. Eep. 507-511; Herring v.
Fitts, 43 Fla. 54, 99 Am. St. Eep. 108, 30 South. 804. Deeds of gift
may be reformed: Note to Williams v. Hamilton, 65 Am. St. Eep.
514. See in this connection, W'iHey v. Hodge, 104 Wis. 81, 76 Am.
St. Eep. 852, 80 X. W. 75. As to the effect of laches on the right to
reformation, see page 504 of this note.
43 Amehican State Reports^ Vol. 101. [Alabama,
AXXISTON ELECTRICAL AND GAS COMPANY v.
HEWITT.
[139 Ala. -142, 36 South. 39.]
ELECTRIC RArLEOADS— Negligence— Injury to Stocl?.— A
railroad company operating its road by electricity and knowingly
running its trains under conditions rendering it impracticalde for
those iu charge to prevent injuring stock straying upon its tracks,
is accountaliie for the loss when injury occurs, (p. •12.)
ELECTRIC RAILROADS— Negligent Speed— Injury to Live-
stock.— Running an electric street-car in the night-time, at a speed
in violation of a city ordinance, and so rapidly that it cannot be
stopped within the distance a cow is seen, when she conies on the
track twenty yards ahead, is negligence, which renders tlie railroad
company liable for the resulting injury to the cow. (p. 43.)
Lapslcy, Arnold & Martin, for the appellant.
R. Blackman, for the appellee.
4»-'i ILVRALSOX, J. Tlie law is well settled that railroad
companies that knowingly run their trains under conditions
rendering it impracticable for tliose in cliarge to ]ircvcnt injur-
ing stock straying on tlioir tracks, are accounta])le for tlio loss
\vhen injury restdts: Birmingliam etc. R. R. Co. v. Han-is, 'J8
Aht. o-iti, 13 South. 37 7; Louisville etc. R. R. Co. v. Davis. 103
Ala. r.r.l. IG South. 10; Louisville etc. R. V\. Co. v. Cocliran, lo.",
Ahi. orn, IG South. 797; Louisville etc. R. R. Co. v. Kelton, 112
Ahi. 5:];'), 21 Soutli. 819; Central of Georgia R. R. Co. v. Stark,
]2(i Ala. 3(;7. 28 South, -ill.
Tiiis princi[>lo ap]>li'^s. when needful for the prDiection of life
and prop<'riy, to a railroad on wliich elect ririiy is tised as the
inoviief jiowcr. a.s v.'cU as lo one 0|)erat('d by steam: L(»uis\iil(>
etc. R. 1.'. Co. V. Anchor.^, Ill- Ala. 493^ uUi, 5U5, 02 Am. St.
L'ej). 11 'i. 22 Soutli. 279.
The law enjoined upon the niotorninn f'pei'ating defeiidr.nt's
cjir ilu! duly to keep a luokoea for liM'-tock, and not lo run his
car at such a rate (jf >]>c('A that he could not .-lop it within the
d'-!ance he could sci? the jjlaiiitilf's cow. The only rpialidcation
v'i ihis rule is that where — sueli duties hcing observed liv the cn-
giiH'<T or inotorinan — the animal con)e.- suddeidy u]><-)n the track,
so cli'X' to the engine that the engineer cannot slop in time lo
])re\<'nl running over it, in which ca.-e its destruction cannot be
a^-ci-ilied to defi'ndant's neuliufuce ; Louis\ille etc. R. R. Co. v.
Feb. 1904.] Anniston Electrical etc. Co. v. Hewitt. 43
Brinl-rerhoff, 119 Ala. GOG, 2-1 South. 892; Central of Georgia
E. E. Co. V. Stark, 12G Ala. 367, 28 South. 411.
In this case, the evidence showed without conflict, that by an
ordinance of the city of Anniston, in the corporate limits of
which city plaintiff's cow was killed, it was ordained, that ''no
pei'son shall run, or cause to be run, any railroad train, car or
engine, within the corporate limits of Anniston, faster tlum at
the rate of six miles an hour." The evidence satisfactorily
showed that the car was running, at the time of the accident,
over six miles an hour. The motorman testified it was running
about ten miles an hour. He also testified that a car running
at an ordinary rate of speed can be stopped within a distance of
about tliirty steps. Other '^^ evidence tended to show that it
can be stopped within a distance of twenty-five or thirty stops,
and that it could not be stopped wdthin fifteen or twenty steps.
The motorman also testified that when he first saw the cow,
she Avas running up a bank ahout twenty feet ahead of the car;
tliat he put the brakes on immediately as tight as he could, and
did all he could to stop the car, that he could not see over
twenty feet in front of the car, and it was impossible to stop it
v.'ithin t'nat distance. The killing oceurrcd in the night-lime,
and the track was straight and free from objects calculated to
obstruct the view of the motorman.
From this it appears that the car was being run in the night-
time, at a speed which was in violation of the city ordinance,
and so ra})idly, as that it could not be stopped within the dis-
tance the cow was seen when she came on the track — twenty
steps ahead.
The court below, trying the case without a jury, found for
the plaintiff, and rendered a verdict and judgment in his favor
for thirty dollars, the value of the cow as shown by the evidence.
It has not been made to appear that this judgment was erron-
eous.
Afnrmed.
It h Xcf/lificncc in a r.ailroad conipnnv to run its trains in the ni^ht-
tiiiio at suoh a speed that it is impossible, by the use of ordinnry
nicnns nnd appliances, to stop the train within the distance in which
stock upon the track can be seen by the aid of the headlight on the
engine. If injury to stock results from such ne:Tiiiro7if.p_ tjio eo^>:-
pany is ansv.-erabio to the owner: Alaliama etc. Ry. Co. v. ?>ri'Gill, 121
Ala. 230, 25 South. 731, 77 Am. St. Rep. 52, and note. As to tho
liability of railway companies, in {reueral, for injuries to nni.nuils
trespassing on their tracks, see the notes to Tonawanda R. R. Co. v.
4-i American State Kepoets, Vol. 101. [Alabama,
Hunger, 49 Am. Dec. 261-273; Memphis etc. E. E. Co. v. Kerr, 20
Am. St. Eep. 161, 162. And as to whether it is negligence per se to
run a train at a speed prohibited by law, see Hutchinson v. Missouri
Pac. Ey. Co., 161 Mo. 246, 61 S. W. 635, 852, 84 Am. Ht. Eep. 710,
and cases cited in the cross-reference note thereto.
YOUNG V. SHELDON.
[139 Ala. 444, 36 South. 27.]
MARRIED WOMEN— Power of Sale of Land— Execution of,
Without Joinder of Husband. — If a testator, by his will, devises all
his property to his wife, "during her litctinie, to manage at her con-
trol, or as she may think best, for herself and her children, in future,
to contract debts and pay them out of the property as she may deem
expedient, or to sell oif the property as she thinks proper during her
lifetime, and at her death" the remaining property to be sold and
the proceeds divided among his childieu, lio taus eo:iiers upun lier
power to dispose of the property in fee, whieh she may do by deed
without the joinder of her then husband, (p. 46.)
MARRIED WOMEN — Execution of Power of Sale — Joinder of
Husband. — A married woman may, without tiie assent or concurrence
of her husband, execute a power conferred upon her to dispose of
lands in fee by executing her sole deed thereoi. (p. 46. j
POWERS OF SALE — Intention to Execute. — It is not neces-
sary that the intention to execute a power of sale sliail appear by
express terms or recitals in the instrument, and it is sullicient if it
appears by words, acts, or deeds, demonstrating such intention, nor
is it necessary that the power be referred to, or recited, in the deed
of the donee of the power, provided the act of the ilonee shows that
he had in view the subject matter of the power at the time of ex-
ecuting the deed. (p. 48.)
E. T. Simpson, Jr., and P. Ilodgcs^ for the app'jUant.
J. B. Weakley, for the appellee.
417 TYSOX, J. The plaintiff, in order to recover in this
ease, must, of course, have the lepal title. She predicates her
chiiiu to said title upon item 3 of h.er grandfather's v.'ill, which
is in tliese words: ''l give to my heloved Avife, Hetty I). Jones,
who is my sole executrix, all my lands, negroes and stock, in
shoi-t all my property of any description, after the payment of
all my just deljts, etc., and my youngest son, Daniel A. .Jones,
receives his portion heretofore mentioned, during her lifetime
to manage at lier control or as she may think hest for herself
and her children in future, to contract del)t3 and pay them out
of tlic pro|)erty as she may deem expedient, or to sell off the
property as she thinks proper during her lifetime, and at lier
Feb. 1904.J Tounq v. Sheldon. 45
death — I wajit all the effects that she has in any way, lands,
negroes and property of any kind whatsoever to be sold at public
sale to the highest bidder and the proceeds or dues of said
^*® sale to be equally divided between my four children/' nam-
ing them.
It is in right of the four children named, as remaindermen,
she being their sole surviving heir at law, that her contention
is based on for recovery. Assuming that a remainder was cre-
ated, it is clear that the gift over was intended to operate simply
on such of the property as was unsold by Mrs. Jones, at her
death, since Mrs. Jones had an absolute power of disposition by
sale of any or all of the property devised to her. Conceding the
applicability of section 10-16 of the Code, without deciding that
it has application to the provisions of the will quoted above,
prior to its enactment where the devise was one for life with
absolute power of disposition, the first taker took the absolute
fee free from the limitation over and the remainderman took
nothing. The limitation over, attempted to be created in such
cases, was void for repugnancy: Flinn v. Davis, 18 Ala. 132;
Alford V. Alford, 56 Ala.350; Hood v. Bramlett, 105 Ala. GGO,
17 South. 105; Idc v. Ide, 5 Mass. 500; King v. Beck, 12 Ohio,
390, 474. And this is still the law as to creditors and purchas-
ers. So far as their rights are involved the first taker is still
the owner of the fee. As said in Hood v. Bramlett, 105 Ala.
(51)0, 17 South. 105: "Section 1850 [1046] of the Code is no
more than a statutory recognition of this doctrine so far as
purchasers and creditors are concerned, but it changes the rule,
wlicre rights of purchasers and creditors do not supervene, in re-
spect of and only in respect of future estates limited upon the
life estate of the donee of the power, and to estates thus limited
provides in effect that unless the power of disposition is exer-
cised by the tenant for life or years, they shall be executed and
vested in title, possession and enjoyment in the remaindei-man
upon the death of the tenant of the particular estate. But
the ulterior estates thus protected must rest upon express limita-
tions and not upon mere implication.''
It affirmatively appears that ^Mrs. Jones, in vrhom was reposed
tlio power of sale of the fee of the lands, in 1867, sold them to
tlie defendant's vendor, Mrs. Col>b, who paid the purcha,so money
and went into possession, '^^^ and executed to her a warranty
deed conveying a fee simple estate. It is true it is also made
to appear that Mrs. Jones liad prior to the execution of this deed
intermarried with one McClaren and was his wife at tlie date
46 American State EEroRTS, Vol. 101. [Alabama,
of its execution. Its validity is challenged upon the ground
that her husband did not j-oin with her. It is doubtless true that
no valid conveyance of JMrs. Jones' estate in the land could
liave been made by her alone: Code 1852, sec. 198-4; Code 18G7,
see. 2373. Since she is dead and the only estate she took by vir-
tue of the will was a life estate, the questions presented are: 1.
Whether she could, without the consent or concurrence of her
husband, execute the power conferred upon her to dispose of the
fee ; and 2. Does it appear that she intended to execute it ?
Before answering these questions it may be well to sa}', and
not to assuTiie, that a mere power collateral or in gross was con-
ferred upon Mrs. Jones to dispose of the fee : 1 Sugden on Pow-
ers, 106, also 183, 181, and note; Kent's Commentaries. 13th
ed., 317; 2 Washburn on Real Property, 691; 22 Am. & Eng.
Eney. of Law, 2d ed., 1155, 1156.
It is thoroughly well settled that at common law a mari-ied
woman could, without the consent or concurrence of her hus-
band, execute a power, whether ajipendant, in gross or simply
collateral, notwithstanding her disability to dispose of her own
estate. And it is of no consequence whether the power was
granted to her before or after she became a married woman:
1 Sugden on Powers, 181, 182; Kent's Commentaries, 325; 2
Washburn on Peal Property, 317; 22 Am. & Eng. Ency. of
Law, 2d ed., 1106, and notes. This principle is stated by IMr.
Sugden in this language: "Py the common law a married
woman could not dispose of her own estate without a fine and
recovery, for wliit-h the statulo law has now supplied a deed,
with certain formalities; but, simply as the instrument or at-
toriK'v of another, she could convey an estate in the same man-
ner as her princin;'.!, bcK-ause the deed was considered as the
deed of tlie principal, and not of the attorney and her interest
was not affocted It is not inatcrial whether the power
4r,o ^g givi^n to an unmarried woman, who afterward marries, or
to a woman while she is married or upon her marriage and she
sur\i\i's her hus'jaiid, and afterward takes another; in all the
cases siie may execute the power, and tlie concurrence of her
I'lvliand is in no case necessary."
In dis.-ussing the statutory ip.odo regulating conveyar.ccs by
married women of their estates in lands the supreme court of
^laryland in Armstrong v. Kerns, (51 ]\rd. 367, after pointing
oui thi' rrr|uirrniont of tho statute that the husband must join
i/i tlie decil. said: "I'.ut it has never been considered that this
statutory nu-de of conNcyaiice by the wife jointly with her bus-
Feb. 1904.] Young v. Sheldon. 47
band was exclusive of all other modes of conveyances that might
be prescribed or authorized by the grantor, donor or settler of
the property upon the wife, or that it rendered the wife incapable
of executing a power." In Deffenbaugh v. Harris, 6 Atl. 139,
18 Week. Not. Cas. 357, the action was ejectment, as here, and
the plaintiff's right to recovery depended upon whether there
had been a proper execution of the power by the life tenant, a
married woman, upon whom had been conferred a power of dis-
position of the fee. The donee of the power executed a deed
conveying the fee to one Stevens, without her husband joining
in it, and the point was made against its validity on that ac-
count. The trial court excluded the deed and the defendants
appealed. The will conferring the power was so strikingly simi-
lar in language to this one that we quote it. It read: "I give
and bequeath to my daughter Mary, intermarried with Joseph
S. P. Harris, the house and lot, etc. [describing the property],
and I hereby authorize and empower my said daughter ^lary to
sell and dispose of the same as she may tliink proper, but in case
of her death and the property as aforesaid remaining vmsold,
then it is to be equally divided amongst her children, share and
Fliiiro alike, as they may arrive at the ago of tweuty-one."' It also
appears from the brief of counsel that tliere was a statute regulat-
ing the execution of conveyances '^^ bv married women similar
to ours. The court speaking through Sterrett, J., said : "Con-
struing the devising clause in question according to the plain
import of the language employed and in the light of other pro-
visions of the will, we think the testator intended to give ^Mrs.
Harris a life estate in the lots with remainder in fee to her chil-
dren, subject, however, to divestiture by the execution of the
power of sale given in express terms to the life tenant. The
power thus given to ^Mrs. Harris by her father is a power to ap-
point, by way of sale or otherwise, to other uses than those speci-
fied in the will, and was, therefore, v.ell executed by hursclf
alone witliout her husband joining in the deed of conveyance
to Stevens. Xothing is better settled than that a feme covert
may, witiiou+ the concurrence of her husband, execute any kind
of power, whether given to her wlien single or married. To re-
quire his concurrence miglit not only ombari-ass the donee of the
power in its execution, l)ut in case of his refusal te concur would
prevent its execution altogether, and thus defeat the testator's
intention. It is obvious from a consideration of the entire will
in the case that the intention of the testator v.-as to exclude the
husband from all interest in the control over the property to
4S American State Reports^ Vol. 101, [Alabama,
vliicli the power of sale relates. Stevens, the vendee of Mrs.
Harris, derived title to the lots in question, as part of the es-
tate of Aaron Burns (testator), under and by virtue of the
power of sale, and not by virtue of any estate in ^Irs. Harris
herself. The only estate she had was for life, but the power of
sale wlien executed, as it was by a regular deed of couvcn anco,
vested in him the fee to the lots in controversy; and the phiin-
tilTs in error claiming under him, should have been permitted
to show their title.''
This authority practically decides every question involved in
the case under consideration. It is true the second question pro-
poun<led al)0ve is not disi-ussed, and the intention of the donee
of the power to exei-ute it seems to be assumed to have existed
from the fact that the deed purports to convey the fee. And
tiiis assumption was a correct one as we shall show. "It is not
necessary that the intention to execute a power of **^- sale shall
aj'pear by express terms or recitals in the instrument. It is suf-
ficient that it shall appear by words, acts or deeds, demonstrat-
ing the intention"': r^IcIJca v. McDonald, 57 Ala. 423. Xor is it
necessary that the power be referred to or recited in the deed of
the donee of the power, provided tlie act of the donee shows that
he liiul in view the su!)ject of the power.
An instance iLsed V-v Mr. AVashburn, quoted approvinijlv in
Cin^irat v. Montgomery Ligiit Co., 82 Ala. G04, GO Am. Fiop.
7G'J, 2 Souti!. ;i2r, ami in Gulf Ked Cedar Co. v. O'Neal, 131
Ala. 133, 90 Am. St. iJep. 22, 30 Soutli. 4rir,. of a sutTicient
execution of power is directly in point. It is this: '•Thus, if
one have a life e.-iate in land and a power of appointing in fee,
ai.d conveys the fee it is an execution of the power." Contin-
uing, tl'.e autl'.iir .-ays: '"Wlsen a jwrson conveys land for a
valuaMe i-on-iiiurati'in, lie jnu.-t l-e held as engaging with the
gi-:i:!i"r to make tlie deed as elFectual as lie has power fi mrdco
it": S. ,•. alsn. Yates v. Chirk, oC :\Iiss. 212: I'aird v. Boudier,
•■■I Mi^-. 321;; White v. llieks. 33 X. Y. 3>3 ; Hall v. Prehhs GS
M-. ln.>; <ninh v. Snutli, 91 Ind. 221. 4G Am. K^p. .591; Funk
V. K--i.-in!!. [r> III, 015, 31 Am. Fep. 13G; liishop v. ilemph^,
n oMm St. ■:::.
Iti ( ■ir.i-!ii~iiin )! m;iy nnt be amiss to sav tluit section 1052
of ih" (■').!>■ -iiiipiv pre.-cnhes tiie formality of ilie inslnniu'nt
i:.-' • --ary \n a \a;id execution of a ])ower and in no wise aHects
thi- '■.".';\^-'Ay of liio (jiuiee lu execule it.
Aiiinneih
March, 1904.] Mayor etc. v. Birmtxgham W. W. Co. 49
A Pou-cr of Sale given in a will should receive a* liberal construc-
tion in order to carry out the purpose and intent of the testator. No
express recital of the power seems necessary: Matthews v. Capshaw,
109 Tenn. 480. 97 Am. St. Rep. 854, 72 S. W. 964; Gulf etc. Lumber
€o. V. O'Neal, 131 Ala. 117, 90 Am. St. Eep. 22, 30 South. 466. A
feme covert executrix may execute a power without her husband,
and her deed as executrix for lands devised to be sold is valid,
though she is not privately examined: Tyree v. Williams, 3 Bibb,
365, 6 Am. Dec. 663.
MAYOE OF BIRMINGHAM v. BIE:iriXGIIAM WATER-
WOEKS COMPAXY.
[139 Ala. 531, 36 South. 614.J
MUNICIPAL COEPORATIONS— Contracts by— Ultra Vires.—
An agreement by a municipal corporation to limit the amount of
license tax to be exacted of a water company during the term of a
contract to supply water, if made without legislative sanction, is
ultra vires, and void. (p. 51.)
E. D. Smith, for the appellant.
London & London, for the appellee.
^^ DOWDELL, J. This appeal is taken from the judgment
of the city court rendered on an agreed statement of facts, which
is set out in the bill of exceptions. The appellee sued the ap-
pellant to recover back five hundred dollars which it had paid
the appellant, under protest, as a license tax — the license tax
imposed being one thousand dollars — the half of which tin'
appellee admitted the appellant had the right to impose and
collect, and which it paid witliout protest; but the other half
the appellee contended appellant had no right to exact under
the terms of the contract into which it had entered with ap-
pellee, and was paid under protest. The contract entered into
was with reference to the supply of water for the city of Bir-
mingham and its inhahitants. By the agreed statement of facts
it is admitted: 1. The city had power to contract for a siipjdy
of water; 2. That it did make tlie contract of June 2, 1888,
which is set out in tlie record, and upon tlie faith of wliich
appellee expended a large amount of money in the construction
of a waterworks system; 3. That the license tax at the time the
contract was made was five hundred dollars per annum, and so
remained from the date of the contract until the year 1900.
^^^ when the appellant raised the license tax to one thousand
dollars.
Ain. St. Rep. Vol. 101—4
60 American State Keports, Vol. 101. [Alabama,
The onlv question prosontcd is whether section 22 of the con-
tract, wliicli is sot out in full as a part of the agreed statement
of facts, is valid. Section 22 of the contract reads as follows:
"Be it further ordained, that the license tax against said Bir-
mingham "Waterworks Company, its successors and assigns, shall
not exceed the present license t^x during the existence of the
contract above named." V>y section 14 of the contract, the
tenn of the contract was for thirty years. The power of the
citv to license trades, occupations, etc., is conceded, and no
question is made on the reasonableness of the license attempted
to be imposed.
It seems to be a well-established })ropo?ition of the law that
the levying of a license tax is a legishitive or governmental
power. In the case of Savings & Loan Assn. v. Topeka, 20 Wall.
G55, 22 L. ed. 4G1, it is said : "The power to tax is, therefore,
the strongest, most prevailing, of all the powers of government, ,
reaching directlv or indircctlv to all classes of people." In the
case of Bills v. Goshen, 117 Ind. 221, 20 X. E. 115. 3 L. U. A.
2(i4, it was decided that an ordinance delegating to the mayor
the riglit to fix the amount of a license fee was void, as a dele-
gation of legislative power. See notes on page 721 of 20 L. R.
A., showing that the power to fix a license fee is generally re-
garded as a legislative power, which cannot be delegated. It
is not denied, as a general |)roposition, that it is in tlie ]iower
of a municipality to contract for a supply of water, since such a
right comes within the l)usiness or proprietary ])owers of the
corporation, and is not to be classed as a legislative or govern-
mental power. But it does not follow from this that, in the
exercise of such a power in llie making of a contract for a sup-
ply of water, the corporation can l)y any provision or terms in
sueli a contract delegate or barter awav a governmental })ower,
wlien not authorized so to do by the legislature either in it- eliar-
ter or other statutory enactment. There can l)e no di {Terence
in prinr-iple between delegating a governmental power, and bar-
tering or (oiitraeting away sucli ])ower. Xor is there any dis-
tinction in principle '''^^ lietween an agreement not to levy a
tax for a term of years, and one which stipulates an annual
lici'n>e tax already levied shall not 1)0 increased for a tiTin of
years. It is not preloiided tliat tlie city of i'.inningliain. liy its
clinrter or other statutory enactment, was expressly authorized
to enter into the agreement contained in section 22 of the con-
tract -et out ahovc; and. unless the power so exercised is one that
can hu nec'.-.-arily and rea-unaMy imj)lied, the agreement nut
March, 1904.] Mayor etc. v. BiRiiixGHAii W. W. Co. 51
to increase the annual license tax for a term of thirty years was
ultra vires the corporation, and consequently void. The settled
rule of construction of a grant of power by the state to a cor-
poration calls for a strict construction, and in favor of the state
and against the corporation. Such power cannot be implied
from the mere fact of its being within the business or propri-
etary power of the municipality to contract for a sup])ly of
w^ater. It is not to be presumed that it was necessary for the
city to barter or contract away its taxing power in order to pro-
vide for a supply of water, and the implication of such a power
must be a necessary one. Our attention has not been directed
to any provision of the charter or to any legislative enactment
out of which any such implied power could arise. The case of
Stein V. Mayor "of Mobile, 49 Ala. 3G2, 20 Am. Eep. 283, is
relied on in support of appellee's contention. In that case the
contract was expressly ratified by an act of the legislature, and
we suppose that was the reason the court did not consider, but
assumed the contract was valid, and that the city council had
the right to stipulate for exemption. The contract, however,
was not open to such construction. A careful reading of the
contract in that case leads us to the conclusion that tlie words,
^'without let, molestation, or hindrance," had no reference to
taxation or license. Other cases cited by counsel may be dis-
tinguished from the one under consideration, either in that the
exercise of a governmental power was not involved, or, where
such was the case, the subsequent ratification of its exercise by
the legislature.
Our conclusion is that section 22 of the contract is void, and
the court below erred in the judgment rendered and one here
rendered in favor of the appellant.
Eeversed and remanded.
Sharpe, J., not sitting.
The Judgment of Municipal AuthorUie-<< as to Tvhat is promotive of
tlie pulilic welfare must ordinarily control, althdugh not in aceord w\x\\
the views of the court. Nevertheless, the dele<jation of legislative
power to subordinate political bodies of the state is solely for public
purposes, and must be exercised with reference to them. If an act is
so remote from every such purpose that no relation thereto can, within
human reason, be discovered, such act must be excluded from the
delegation. Thus, an ordinance whereby a village contracts for
practically fifty years to take all its lights from a corporation, and
pay for them at a rate fixed by the ordinance is unreasonable niui
void, especially when the village has already reached a population
52 American State Keports, Vol. 101. [Alabama,
entitling it to become a eity, and it is practically a part of a great
city, tliough not yet within its corporate limits, and the prices to be
paid are in excess of those elsewhere paid under similar circum-
stances: Lo Fober v. West AUis, 119 Wis. CUS, lUO Am. St. itep. 917,
97 N. W. 203.
K'ELSOX V. FIRST XATIOXAL BAXK.
[139 Ala. 578, 3G South. 707.]
PLEADINGS — Amendment. — The doctrine of the relation back
of amendments to the commencement of a suit is a fiction of law,
and should never be ajipliod when it will oneratc to cut olT a substan-
tial right or defense to new matter introduced by the amendment to
the complaint, though connected with the original cause of action,
(p. 55.)
STATUTES of Limitation furnish a defense as mcrilorious as
any other, (p. 5").)
PLEADINGS — Amendment — Plea of Limitation. — An amend-
ment to a complaint, in order to con)e within the doctrine of relation
back to the commencement of the suit, and cut off tlie pica of the stat-
ute of limitations, must be but a varying form or expression of the
claim or cause of action sued on, and the su])ject matter of the
amendment must be wholly within the Us pendens of the original suit.
(p. 55.)
PLI3ADINGS — Amendment— Plea of Limitation. — If the matter
introduced by way of amendment to a complaint, although it be such
as might have been joined in a different count in the original com-
plaint, introduces a new claim, or a now cause of action, requiring a
different character of evidoiu-o for its support, and affording a dilV'^r-
ent defense from that to the cause as originally presented, it will
not relate back to the commencement of the suit, so as to ]irevent
the plea of the statute of limitations to the new iiuitter thus intro-
duced. (]i]i 55. 56.)
PLEADINGS — Amendment— Plea of Limitation. — rinintiff
mny introiluce a new cause of action, or a new right or chiiin arising
out of tlie same transaction, by amendment to his cmniilaint, ])ut
Rucli amendment canimt have relation Inick to the comni(>ncement of
the suit, so as to avoid the bar of the statute of limitations, if the
statute would operate as a bar to a new suit commenced for that
cause of action :it the time of making such amendment, (p. 5(!.)
PLEADINGS — Departure by Amendment — Plea of Limitation.
In ditcniiiniug wlielher an amendment to a complaint assorts new
riK'tiiT fur a new claim, and reliitis Im'-lc to the cot;imeii<'enieiit c.f tlie
suit so as to cut off the plea of the statute of limitations, the true
t'st is whrtlicr the matter set up in the antendment amounts to a
depart iir,. in after pleading, an<l if it does, the amendinont cannot
tinis relate b:o-k. (p. ."it.^
PLEADING - Departure by Amendment— Plea of Limitation —
A cnttiplaint '--•tting up a claim for riionev liad and r<-ceived, and l.y
a;;;c,i,i,i!ent ^etiiii.j up a clai;n for u'oods suld and <lelivere,l, 'growing
nut of tho sani.- t ra n-^a.t i:,,!. ]irc^cnts a deiiarture in after ^d'^'idin ■",
and SMch anirn.lnient canuMf relat,. Lack to the timo of the cum-
nicneenient uf th.- suit, «■> a. t,, cut off the plea of the sta.tuf,. of.
li;:itaLiuns ad to the n.atier set i;p in such amendment. (ii. {]].)
June, 1904.] Xelson v. First National Bank. 53
Gunter & Gunter, for the appellant.
Watts, Troy & Caffey, H. Stringfcllow and J. :.I. Chilton,
for the appellee. .
°^-* DOWDELL, J. The suit in this case was begun on the
twentieth day of March, 1896, with a -complaint containing a
single count, claiming for money had and received by the de-
fendant on the twent3--sixth day of June, 189(J, for uie use of
the plaintiff. On the 21st of ' December, 189G, the plaintiff,
by leave of the court, amended the complaint by filing a second
count, claiming the same sum as claimed in the first or original
count; and by leave of the court, on June 9, 1897, she further
amended the complaint by filing a third count, in which the same
sum is claimed as in the first and second counts, for goods, wares
and merchandise sold on June 27, 1890, and avers that the
cause of action thereunder is the same as that embraced in the
first and second counts. On motion of defendant, that part
of the second count beginning with the words, "and plaintiff
avers that in 1892," and going down to the end of the count,
was stricken out. As the second count remained after elimi-
nating the part stricken on motion, it reads as follows: "The
plaintiff claims of the defendant the further sum of twenty
thousand ($20,000) dollars with interest tbercon from, to wit,
June 2G, 1890, for this, to wit, that, theretofore, and then,
the plaintiff was a married woman, the wife of one 0. 0. Xelson,
and theretofore was the owner and was possessed, as a separate
estate under the laws of Alabama, of a parcel of real estate in
the city of Montgomery, known and called 'The Pollard place,'
and had sold the same to the Savannah, Americus & 31ont-
gomery Eailroad Company for thirty thousand dollars, ten
thousand dollars of which was paid in cash, and for tlie re-
mainder she had taken two notes of the purchaser, for ten
thousand dollars each, payable at one and two years from date,
with interest from date, at the banking bouse of ^Moscs Brotlicrs,
^Montgomery, Alabama, wbich said notes were duly secured by
mortgage made by tbo purchaser to the plaintiff on the said
real estate so sold, and conveying the same to the plaintifT: that
on, to wit, ^*'"' tbe twenty-seventh day of June. 1890. she. by
written indorsement on said notes, joined in ])y her husband,
and by written transfer, also joined in ])y her husliand, and
duly witnessed, assigned, transferred and sold to the defendant
tbe said noto? and tbe said mnrt,L:'age. and tbe real estate therein
mentioned, for tbe consideration of, to wit, twenty thousand
5i American State Ukpokts, Vol. 101. [Alaonir.a,
dollar?, and handed the said securities and papers to her hus-
band for delivery to the said defendant; that the said 0. 0. Nel-
son did so deliver the said notes and securities to the defendant,
and were accepted by the said defendant as npon the said sale
of {)laintiflF to it, whereby the defendant became liable to }>ay
the plaintitT the consiileraiion for the transfer of said notes
and niortga<ro, which plaintiff avers was and is^ to wit, the siini
of twenty thousand dollars, which plaint ill' avers it had never
paid, and which is still due and nn])aid, with interest thereon
from, to wit, the 27th of June, 1890. And plaintiff avers that
the cause of action in this count is the same as that sued upon
in the first count, and is only a statement of the special facto
of the case."' That part of this count so stricken on motion
contained a narration of a suit in the chancery court of Mont-
gomery countv by the plaintilT against this defendant, relative
to the sul)ject nuitter embraced in the })resent action, but t1ie
matter so stricken out did not change the nature and cb.aracter
of the count; that is, the count remained an action for tlie
])urchase price of the notes and securities described therein, and
in no wise affects the ajiplication of tlie legal principles ari-ing
under the several ])leas of the defendant npon whicli the plain-
tiff joins issue. To the first count, among others, the defeml-
ant filed pleas of the general issue and payment; and to the
second and tliird counts, among ol1ier pleas, the defendant
pleaded tlie general issue, payment ar.d statutt^s of limitation of
lliree and six years. Xo (b'tnurrer or special replication was
tiled to tliese pleas of the general issue, payment and starutes
of limitation, hut issue was joined on eaeli of them.
TIk; cause of action on whicli the suit is based arose on tlie
twenty-seventh day of June. tS!)0. and tlie suit was commenced
on tlie twentieth day of March. ISlM!, thus being within the six
vears iierind. It is e\ident that at the ^'^^'' date of the filing
of the second and third counts, respecti\-ely, to \v\\, December
■-'1. isi-ii, and dune !», ]8!'T, the statutory bar of six years was
com|dete, and fiii'ni.-l'i'd a jierfect defeii-e to tlie-e counts, un-
li'>- tliey fall williin tlial cla.-,- of amendnieiits which relate liack
to tlie coiiimencciiirnt of the suit. The doctrine of the relation
back of ami'iidmrni^ to tbi' conmienceiiient of a suit is a fiction
of law. anil ^ll'lulil never l.e aiiplied wlierc^ it would operate le
cut oil" a -111 -lanliiil I'i^bt ^r del'ense to new matter imroiliicr,'
!iv the aiiM'ndiiient tli"iiL:h cnnin'ctei] with the original causi^ ^)(
action. in the cn-i' nf i'lople v. .Ii!du'(' of Newayifo Cii'cuit
Court, '!'i .Miih. 1:N. w'ncn'in ;lii- docti'ine was invokeil to met
June, 1904.] Nelson v. First National Bank. 55
the defense of the statute of limitations pleaded to the amended
declaration, in an opinion rendered by Christiancy, C. J., and
concurred in by his associates, it is said : "But long before this
amended declaration was filed, or leave to file it applied for,
the statute of limitations had taken effect upon and barred the
cause of action set forth in it. Had a new suit then commenced
for the same cause of action, it is not contended that it could
have been maintained; and we see no substantial difference be-
tween the commencement of a new suit and the allowance of
this amended declaration, under these circumstances, for the
same cause of action. It is clear enough that the only purpose
and object of allowing the amended declaration, instead of put-
ting the plaintiff to a new action after they had submitted to
a nonsuit, which nonsuit had been set aside, was to prevent the
statutory bar of the action. We do not think that the statute
can be evaded by any such necromancy, and to permit the shal-
low fiction of a relation back to the commencement of the suit,
under such circumstances, to nullify the action of the legislature,
would be discreditable to the judiciary."
Statutes of limitations are statutes of quiet, and they are
beneficent in that they put an end to disputed claims, prevent
litigation, quiet titles, and give rest and repose. No matter
what may be the criticisms of the casuist, in the eyes of the lav/
these statutes are no longer regarded ^^"^ as harsh, but furnish
a defense as meritorious as any other, ^\^lile our statutes of
amendments are broad and liberal, it is not every amendment
allowable under the statute that will relate back to the com-
mencement of the suit, operating to cut off the plea of the stat-
ute of limitations, as to the matter introduced by tlie amend-
ment. It seems to be the settled rule that the amendment, in
order to come witliin the doctrine of relation back to the com-
mencement of the suit, must be but a varying form or expression
of the claim or cause of action sued on, and tlie sul)jcct matter
of the amendment wholly within the lis pendens of the original
suit. If the matter introduced by way of amendment, altliough
it be such as might have been joined in a different count in tbe
original complaint, introduces a new chiim, or a new cause of
action, requiring a different character of evidence for its su])-
port, and ali'ording a different defense from that to the cause
as originally presented, it will not relate back to the commence-
ment of the suit, so as to prevent the plea of the statute of lim-
itations to the new matter thus introduced. In King v. Avery,
37 Ala. 1(19, where tlie amendment consisted in adding the name
5G American State RErora's, Vol. 101. [Alabama^
of the husband as a party pbiintifT with the wife, in whose name
the suit was originally instituted, it was held that the amend-
ment was not allowable, for tliat it introduced a new claim, and
chan<red the character of the siiit from that of the wife to that
of the husband, thou<,dT, the cause of action remained the same,
and it could not relate back to the commencement of the suit,
to prevent the operation of the bar of the statute, which was
complete at the date of the filing of the amendment. In Lans-
ford V. Scott, 51 Ala. 557, where the original complaint con-
tained a single count upon a promissory note, and by leave of
the court the plaintiff at a subsequent term amended his com-
plaint by adding the common counts for goods sold and de-
livered, money had and received and on an account stated, this
court held that the statute of limitations was pleadable in h&v
to the common counts so introduced by amendment into a com-
plaint on a promissory note given for the same cause of action,
the limitation having expired since the commencement '^'^'^ of
the suit on the note, but before the amendment was made. In
the case of People v. Judge of Xewaygo Circuit Court, 27 Mich.
138, the original complaint was upon the common counts, and
the amended declaration declared upon a contract which related
to the same subject matter, setting out specifically the facts;
and it was held by the court that there could he no relation l)ack ;
that the ])ar of the statute being complete as to the amended
counts at tlie time of the filing of the same, was a perfect de-
fense. In Molir v. Lenile, 69 Ala. ISO, in an opinion by Brickell,
C. J., it was said: "The latitude of amendments allowed to tlie
plainlitr cannot be allowed to work injustice to tlie def(Midant,
or to deprive liim of any just or riglitful dcfonso. Tlio plaintilT
n:av introduce a new cause of action by amendnicnt. but such
aniomlment cannot have relation to the coimncnceincnt of the
suit, so as to avoid the bar of the statute of limitations, if the
.-tatutc would n])cra1e a l)ar to a new suit coiuincnced for t'i;\t
cause of action at the time of making the amendment. Th.-'
wlinlo ductrino of relation rests in a fiction of law, adoj)tod to
^llb,~l•^v(^ iuvl not to defeat, riglit and ju.-fice. \\lien an
anieiidiueiit introduces a new rigid, or new matter, nof, witliin
tbe lis peiiileii-:. aiul tlio IssMo Ix'tween the parties, if. at tlie iin-o
of it< iiit roduciioii, a,s fi> sueb new ritrht or matter the sla'ute
of liinilatiMns b;id operated a bar, tlie defendant mnv iii-i-t
upnn the henelit of the sta.tute. and to bim it is availa''!" a> if
t!a" anienilnieiit were a new and inibpeiiilent suit"" — eilini: ap-
prM\iiigly King v. Avery, oT Ala. Ifjl', and Lansford v. Scott,
June, 1904.] Xelsox v. Fiest Xational Bank. 57
51 Ala. 567. Again, it is said, in Steiner v. First Xat. Bank,
115 Ala. 387, 22 South. 32, in an opinion by Brickell, C. J. :
" 'Eelatio est fictio juris' is upheld to advance a right, not
to advance a wrong, and it is said the limitation of it so as to
prevent it from doing injury to strangers, or defeating mesne
lawful acts, is a common language of the books" : Citing Jack-
son V. Davenport, 20 Johns. 551. "The general rule is that
amendments of pleadings, without regard to the time or stage
of the cause at which they are introduced, have rehition to the
commencement of the suit, or to the time when the matter
•^^^ could have been pleaded originally. But the relation is
not imputed, if it would deprive a party against whom the
amendment is made of any substantial right. If an amendment
of a complaint introduces new matter, or a new claim, as to
which tlie statute of limitations has perfected a bar, the bar
cannot be avoided, by referring the amendment to the com-
mencement of the suit" — citing Mohr v. Lemle, 69 Ala. 180.
The following authorities are also in line with the foregoing
principles: Anniston etc. E. E. Co. v. Ledbetter, 92 Ala. 326,
9 South. 73; Barker v. Anniston etc. Ey. Co., 92 Ala. 314, 8
South. 466; Alabama etc. Ey. Co. v. Smith, 81 Ala. 299, 1 South.
723; Tompkins v. Holt (Ala.), 8 South. 794.
It may be that in our decisions, when speaking on the subject
of amendment, the employment of the expression of new cause
of action is calculated to produce some confusion or misappre-
hension. But an analysis of these cases will be sufficient to
show that the expression can be taken when so used as intending
nothing more than a new right or claim arising out of the same
transaction. If it were not so, that is to say, if the new cau^e
of action was one arising out of a wholly different transaction
from that laid in the complaint, then it would constitute what
we have sometimes designated as an entirely nev\' cause of action,
and one v,-liich could not be introduced into the complaint by
amendment, if objected to. Identity of transaction is, therefore,
the basis for the introduction by way of amendments of connts
on new claims or rights arising out of the same. If the matter
sought to be introduced by amendment relates to an ontireiv
ditferent transaction from that laid in the complaint, it would
be such a radical change as to constitute an entirely dilTeront
cause of action, not allowable under our vorv lil)eral eon.struc-
tion of the statute of amendments. In the case of Central
E. E. etc. Co. V. Foshee, 12,") Ala. 199, 27 Scitli. IIMIG, tlio que.-
tion was whether to a coniplaint cluu'ging simple noi^ligenee
58 American State Reports, Vol. 101. [Alabama,
merely, a count, ma}- be added, cbarfiing willfulness or wanton-
ness, or vice versa, and in an opinion by the present cliief justice,
it was said : ''These autliorities serve fully to support the propo-
sition with which we began the discussion, namely, ^^^ that
so long as counts? added by amendment set up the same gen-
eral transactions or occurrences upon which the original com-
plaint relied for recovery they do not introduce an entirely new
cause of action, and are not objectionable, though the form of
action may be changed by them as from trover to case, or vice
versa, or from case to trespass, etc. ; and they further serve to
dillerentiate the rule of amendments prescribed by the statute
as construed by the court from the rule against departures in
after pleading from the case made by the complaint. It is
no obj(Mtion to an amendment that it works a departure from
the original com])laint within the meaning of the rule last re-
ferred to." It is by virtue of the statute and the liberal con-
struction put upon it by the courts, that an amendment which
l)rings in a new right or claim arising out of the "same gen-
eral transactions or occurrences" does not offend against the
rule as to departure in after pleading. But the statute c/f
amendiiieuts does not give the amendment an operation back
to the commencement of the suit, so as to defeat the bar ol'
another statute. This operation depends not upon the statute
of anumdments, but upon a legal fiction. It is, therefore, quite
evident, that Init for the statute, an amendment which intro-
duces a new claim, though arising out of the same general trans-
action as declared on in the original complaint, would he sul)-
ject to the rule against departures in after pleading, and- there
is nothing to diU'erentiate amendments, when considered for
the ]tur])(>st' of delcrmining their i-ight to relate back, from the
rule against dei)artures in after pleading. When considering
aiiHTidincnis alone with reference to the (piestion of their rela-
tion liack to the commenceTnent of the suit so as to cut olT the
l^ar of the statute of limitations, in determining whether thev
si't up iii-w iiiattiT or claim, it is l>y tliis coininon-hnv rule ai:ain-t
(le|iai-ni!v in after pleading that they may he tested. This con-
clu.-i'iii \v,is n';!clieil liv tlie sii]irem(> court of the I'niteil Staters
'iiinii I'ne. Uy. ("o. v. Wyler. ir).S T. S. "iS."),
'. >T1, :;!• T.. ed. !).s;i, where, in -An opinion do-
ur-tice White, holding that, the a!H<'n(hiie]it did
'ack. after citing cases of the supreme courts
statrs. niii"ng tliem some of the derisinn- of
a!)M\r, it was said: "The legal priiu'ipjes Ijy
tn tlw
CliM. ,,f
lo Sii;
:. (1. !;.,
livcrcd
i.v Mr. .
not ri-
).,,■,, r.'.n 1
of !!:■•
dili'.'n Hi
tlli> e.
lUI'l. eilri
June, 1904.] Xelson v. First National Baxk. 59
which the questions must be solved are those which bclons^ to
the law of departure, since the rules which govern this subject
afford the true criterion by which to determine the question
whether .there is a new cause of action in case of amendment.
In many of the states which have adopted the code system,
great latitude has been allowed in regard to amendments, but
even in those states it is held that the question of what con-
stitutes a departure in amended pleading is nevertheless to
be determined by the common law, which thiis furnished the
test for ascertaining whether a given amendment presents a
new cause of action by way of amendment." What constitutes
a departure in pleading is thus stated in Stephen on Pleading,
page 410 : ''A departure in pleading takes place where a party
deserts the ground that he took in his last antecedent plead-
ing and resorts to another." In the case of McAden v. Gib-
son, 5 Ala. 341, it is said : "A departure in pleading is said to
be when a party quits or departs from the case or defense whicli
he has first made and has recourse to another; it occurs when
the replication or rejoinder, etc., contains matter not pursuant
to the declaration or plea, etc., which does not support or fortify
it." It is quite plain, we think, that neither the second nor
third count, here introduced by way of amendment, is "pur-
suant" to the first count, which constituted the original com-
plaint, nor did it "support or fortify" it, but on the contrary,
there was clearly a quitting or departure from the ground of
liability as stated in the first count.
That a claim for money had and received for tbe u>^' and
benefit of tbe plaintiif, and a claim for goods sold liy plaintiff
to the defendant, are essentially different in nature or char-
acter, and es^peeially in the evidential facts necessarv to sup-
port the one or the other, wo think hardly open to question.
It is perfectly clear that evidence which v\-ould support an
action for goods sold by plaintiff to the def^ndanr would not
su])port an action for money had and received Ijy tbe defend-
ant for the use '''^^ and benefit of the ]ilaintiiT, and vice versa.
One claim rests upon a contract, express or iin])lie(l, to pav
for tbe goods sold, wliile the otlier has its foundation ujion tli*'
equitable principle that the defendant has monov wbioli. ex
aequo et bono, belongs to the plaintiff. Eesidcs. the mcasurt-
of plaintiffs recovery under tbe several counts in tbe amended
complaint in the ]»ro.-oiu suit is diliVront undor tbe rules of
law. Under the first count, for numey bad and rooeivod. tbe
measure of tbe recoverv would l^e tbe amount or value of wliat
GO American State Kepouts, Vol. 101. [Alalmma,.
eaino into the defendant's hands as the proceeds of the notes
and securities; under the second count, whicli declares upon
a special contract, the measure of recovery would he the stipu-
lated price; under tlie third count, for goods, wares and mer-
chandise sold, the measure would be the value of the notes them-
selves at the time of the sale — of course in each instance, with
the interest added. The rule of dama,!];:es in actions for money
liad and received arises from tlie nature of the action, founded
as it is upon the ecjuitalile princijile which forbids one person
from being unjustly enriched at the expense of another; while
in a contract for the payment of money which is express, its
terms lix the <nmount due thereunder. Where an implied as-
sumpsit is relied on, as for goods, wares and merchandise sold,
when no price is fixed, the rule is that of a quantum vak'bat.
While this criterion of determining the character of amend-
ments witli reference to the principle of relation back to the
commencement of the suit has not heretofore been expressly
stated by this court, it may here be observed that in those cases
where it was held that tbe amendment did not relate back so
as to cut off the bar of the statute, the amendments were sucli
as were violative of the common-law rule against departure in
after pleading. On the other hand, in those cases where the
amondnient Nvas held to relate back, the new matter introduced
presented no now claim or right arising out of tbe same gen-
eral transaction, nni- change of ground of liability from that
originallv laid in the com))laint, but merelv stated in varying
forms of expression ''•*''^ the same claim or right in order to
meet the dillerent jshnses of tbe testinifuiy. and without the
changing or departing from the original ground of liabilitv.
The new matter so introduced being witliin tbe lis pendens,
supporting and fortifying the original coinjilaint, and leaving
the i-siie uncbanged. As. for instance, in ibe case of Dowling
V. luaelcni;!!!, 1 (J Ala. '\*)'.\ cited by a!i[K'llant. tlie original coni-
plaint was in eoile form, and claimed two hundred dollars, due
iiv pniiiii-.-Mry note datod I)eeeml)er 2!». ISC'.i. and pavable
.lauiiary .1. isTl. Tbe amended com])laint set out the note
in full, iM'ing for tbe .-.iine amount, bearing tbe same date, and
pa\ab!c on ila- >ame date as that descril)ed in tbe original com-
jibiiiii, i'Ut - mu> ili;ii it eoiilained c-ontingencies upon tbe liaji-
pciMii: "f v,!i;.-!i the note was not to be paid, and wbieb (on-
tiit_'' ::.;••> it was alb'iii'd bail never ba]>iiened. The (pie.-tion
ar--'' as t^ w'^'llirr tbe -tatut- nf limitai ions ran to tlie date
of tl',i' i'.ii'.i.: of the aiiieiiiiii.eiit. The eourt (lecid</d that the
•June, 1904.] K"elsox v. Fikst Xational Bank.
61
amendment simply varied the description of the instrument
that was already in suit, and set up no new claim or different
ground of liability from that declared in the original complaint.
There can be no doubt of the correctness of this decision, and
it in no wise conflicts with the principles we have above stated.
So, too, in the cases of Winston v. Mitchell, 93 Ala. 554, 9 South.
551, and Adams v. Philips, 75 Ala. 461, both of which were
cases in equity, Turner v. White, 97 Ala. 545, 12 South. 60],
Manchester Fire Ins. Co. v. Feibleman, 118 Ala. 308, 23 South.
759, Louisville etc. E. R. Co. v. Wood, 105 Ala. 561, 17 South.
41, and others, where the amendments were held to relate back,
they introduce no new claim, and were not offensive to the rule
against departures in after pleading. They either merely sup-
plied the details of what was already alleged, or fortified and
supported the ground of liability as stated in the original bil;
of complaint, and in no manner departed from it and resorted
to another.
In the light of the foregoing decisions, it is difficult to un-
derstand how it can be seriously contended that a new claim
or new matter is not introduced by the second and third counts
from that sued on in the original complaint. It is true, they
may relate to the same subject ^^"* matter (that is, the notes
and securities claimed as the property of the plaintiff), but
that fact will not prevent the claim introduced by way of amend-
ment from the characterization of a new claim or new matter.
In the cases which we have cited, the matter introduced by
way of amendment related to, and grew out of, tlie same cause
of action, and A-et the objection to it as new nuitter or a nev/
claim was not thereby obviated. jS'or can the sini])lo averment
by the pleader, in the second and third counts, that it is the
same cause of action as declared on in the first count, av-ail to
bring the amendment within the doctrine of rchition l)aek to
the commencement of the suit. This averment can but be
considered as an opinion or conclusion of the pleader.
Our conclusion is, that the counts added by way of amend-
ment to the complaint did not relate back to the comnionce-
ment of the suit, and the statute of limitations ran to tlie
date of their filing, and at wliieh time, in tliis case, the bar
was complete.
Under the plea of the general issue, filed to the first count-,
the burden of proof rested on the plaintifi' to show th:it the no-
fendant had and received money which, ex ae(]U() et bono, be-
62 American State Reports, Vol. 101. [Alabama,
lon<rod to the plaintiff. Wo have carefull}- considered the evi-
dence in the case, and are unable to find that it anywhere shows
that the defendant hank ever had and received money, or other
thine: of value, to which the plaintiff was entitled, nor evidence
of any facts from which tlie jury might reasonalily infer such
fact. Evidence that defendant discounted and purchased the
notes, which the plaintiff had autliorized 0. 0. Xelson, her hus-
baJid and agent, to sell for her, would not autliorize a jury to
presume that he, 0. 0. Xelson, after receiving the purchase
money, then deposited the same with the defendant, or that
the defendant, in the first instance, in making the discount
and purchase, paid for the notes by giving 0. 0. Xelson credit
on its books.
There being no evidence that the money paid for the notes
was deposited by Xelson with the defendant ro liis credit, or
that tlie money was entered by the defendant ^'^'' to the credit
of Xelson without actually paying it over, nor any evidence
from which the jury might fairly and reasonably draw sucii
couflusion. the court committed no error in giving the general
charge as rc([U(>st('(l Ijy the defendant.
The view wc have taken of the case renders it unnecessary
to consider the other (piestions presented by the record, wliicli
relate to the rulings of tlie court on special pleas and replica-
tions thei'eto, since if there was en-or in any of these rulings
it was error without injury. There being no reversible error
in the record, the judgment of the lower court will be anirnied.
On application for a rehrai'ing by the a])pellant, we were
of the opiiiioii, and so ruled, tiuit we had coniiiiiited an ei'i-or
in hobliiig that the general charge was proj)erly given for the
defeiulaul, but aftei'wai-d. upon application by the a]t])ellee for
reheariuLr. and si ill further argument liv counsel, and further
con>ideration of the i-ase, we became fully satislied and C(.)n-
Urmed in tlie correctness of our first coiu;lu>ion, that thei'e was
nothing in llic e'videiice Lo require a submicsion of the case to
the jury.
A!brn;ed.
Minn till Aim iiiliiK lit lo a 1)1 cldiiilio)) SOTS up no now niattor or
(•l:iiii!, hut ii.ciiiy n-l;itcs in a difTcrcnt furn) the fuiisc of acti'in, it
ii-lati-s to the riiiiiiiiciiciMhciit of the suit, and llii' statute of limitations
i-j a rr<-st</.l at thrit ["int. \N'licn tlic ;inicieliii(Mit introilucos a now ano
'!in'iTi-nt I'aiiso lU' arti<in, it is trratoil as a now suit, Ix'^uri at tin!
?i:ni' wIm-ii i ho a loioohni-nt is tili'il: ('hic'ai^o otr. ]{. H. (.'o. v. .JonoH,
ll'.i 111. oOI, 41 An.. St. i:i\<. 1'7^, '^7 S. K. lit?, 21 L. K. A. 141. !Seo
April, 1904.] Milner & Kettig Co. v. De LoAcn Co. 63
also, Frost v. Witter, 132 Cal. 421, 84 Am. St. Rep. 53, 64 Pac. 705;
Whereatt v. Worth, 108 Wis. 291, 81 Am. St. Eep. 899, 84 N. W. 441;
Bovd V. Mutual Fire Assn., 116 Wis. 155, 96 Am. St. Rep. 948, 90
N.'W. 1086, 94 X. W. 171, 61 L. R. A. 918; Thomas v. Price, 33
Wash. 459, 99 Am. St. Rep. 961, 74 Pac. 563.
MILNEE AND KETTIG COMPANY v. DE LOACH MILL
MAXUFACTURIXCt COMPAXY.
[139 Ala. 645, 36 South. 765.]
TROVEE^— Defense — Bona Fide Purchaser. — It is no defense
to the action of trover that the defendant is a purchaser for value,
and without notice of the rights of the real owner, (p. 66.)
ATTACHMENT — Sales. — Caveat Emptor applies to the pur-
chaser at a sheriff's sale under attachment, and he acquires no greater
title than the defendant in attachment had at the time of the sale,
(p. 66.)
TROVER — Levy of Attachment — Custody of Law. — If the
legal title to property, and the right to its immediate possession are
in one person, the possession of an officer under an attachment writ
against another person is illegal, and the property is not in the custody
of the law so as to prevent the real owner from maintaining trover
for it against one who purchases it at sale under such attachment,
(p. 66.)
CONVERSION. — Any Intermeddling with Property of An-
other, or the exercise of dominion over it, whether by the defendant
alone, or in connection with otlrers, in denial of the owner's rights, is
a conversion, for which trover will lie, though the defendant had not
the complete manucaption of the property, (p. 66.)
Complaint in trespass and trover for the wrongful taking
and conversion of an engine, boiler, and fixtures. Added
counts set up that the property described had Ijecu wrongfully
levied on under attachment sued out by defendant against one
Gross, while such property was at all times the pro}>erty of
plaintiff, and that by reason of such attachment and a sale
thereunder, such property was wholly lost to pUiintiff. Defend-
ant's pleas, so far as necessary to set them out, were as follows :
"10. The defendant for further answer to each count of said
complaint says it is not griilty.
'"11. The defendant for further answer to said complaint
and each count thereof denies each and every- allegation thereof."
"13. The defendant for further answer to the com})laint,
and each count thereof, says that plaintiff sold said propertv
consisting of an engine and boiler described in tlie eomplaint
to one F. M. Gross in Atlanta, Georgia, in the month of January,
C-i American State Ki-roRTs, Vol. 101. [Alabama,
ISnS, and shipped said property from Erie, Pennsylvania, to
said Gross at Kennedy, Alabama, and said property was re-
shipped to Fayette, Alabama, and arrived at Fayette, in Fayette
county, Alabama, on February 24, 1898, and said property re-
mained on the cars until it was attached as hereinafter statetl ;
that on, to wit, March 1, 1898, plaintiff entered into a written
agreeinent with said Gross, in wliich it is stated that said prop-
erty beloni^ed to said Gross, that said Gross exliibited said agree-
ment to the agent and representative of the defendant, and
therel)y caused defendant to sue out an attachment against said
Gross and attach said property as the property of said Gross;
that said Gross claimed to own said property from and after
its shipment into tlie state, and offered it for sale as his prop-
erty, and defendant had no notice of plaintiff's claim to said
property. Defendant under said attachment against said Gross
became a judgment creditor of said Gross and sold said property
under said attaeliment."
''To the several pleas the plaintiff fdcd, among others, the
following replications:
'''4. And ])laintiff for further answer to each of the pleas
of the defendant lierein, except those numbered 1, 2, 5, 10.
and 11, alleges that all the title notes mentioned in said plciis
were surrendered to the said Gross on, to wit, tlie eighteenth
dav of ^larch. 1898, and the said Gross on said date sold, as-
signeil and transferred all h.is right, title and interest in and
to the property mentioned in the complaint to plaintiff, ami
the same remained \ipon the cars at Fayette, Alabama, and at
the time of said levies said jn'ojierty was wholly the propm'ty
of plaintiff, and the said Gross had no right, title or inierer-t
thereto.
" ^"). Plaintiff, further replying to tlie thirteenth plea, and
in answer thereto, says that on the eighteenth day of ?klarch,
1898, after said written agreement was entered into, the said
Gross sold, a^sigaied and surrendered to plaintiff all his righi,
title and interest to said property, and the same remained on
the cars of tlie railroad, and the said Gross was not in the pos-
ses>ii)n of it, nor was he the owner thereof, at the time of said
levy bv drf/'ndant.'
'"To tb»^ fourth and fifth replications the defendant demurred
ujii.n till' following grounds: '^1. Ik'cause it siinws that no
n'>ti((> of sail] sale back to ])laintiff by said Gross was gi\-en to
jilainiiff : 2. Ibcause it shows that no notice was given bv chanire
of posse^si"n of property from said Gross to plaintiff; 3. Be-
April, 1904.] Milxek & Kettig Co. v. De Loach Co. 65
cause it is no answer to the estoppel set up in said plea number
13 ; 4. Because it neither confesses and avoids nor traverses
said plea number 13; 5. Because it fails to sliow any notice to
the defendant of sale back by Gross to plaintiff on March 18,
1898; 6. Because it fails to show that delivery of said prop-
•erty was made to plaintiff by said Gross in the sale of March
18," 1898.'
"The demurrers to the replications were overruled."
"Verdict and judgment for plaintiff and defendant appealed.
E. C. Eedus, for the appellant.
E. P. Wetmore and S. Wilder, for the appellee.
^^ HAEALSOX, J. The case was tried on issue joined
on the pleas 10 and 11, which were pleas of not guilty, and on
replications 4 and 5 to plea 13. A demurrer was interposed
to the twelfth plea, as appears by the judgment entry and was
sustained, but the demurrer does not appear in the record.
The demurrer to replications 4 and 5 to plea 13 were prop-
erly overruled. If the property levied on by the defendant,
under attachment, as is averred in the replications, *'''** was,
at the time of tlie levy, wholly the property of plaintiff, and
Gross, against whom the defendant had recovered a judgmenu,
in its attachment proceedings, had, at that time, no right, title
or interest therein, then the defendant's levy and sale of the
property under its attachment, conferred no title on it, as
against the plaintiff, and the replications were a full answer
to said plea 13.
The evidence fully sustains these replications. From the
agreement of counsel as to tlie fiicts on which the case was tried,
it appears that in January, 1898, the plaintiff contracted in
Atlanta, Georgia, to sell to F. M. Gross the property mentioned
in the comphiint. Gross gave his notes for the property pur-
chased, and in them it was specified that the plaintiff retain
the title to tlie property until the same was paid for.
On ^Marcli 18, 1898, Gross surrenders and assigns to plain-
tiff all his right, title and interest to the property sued for,
which release and surrender was in writing and duly executed.
By this agreement, the sale by plaintiff was rescinded and the
plaintiff l;ecaine, on the 18th of March, 1898, the absolute and
unconditional owner of the property, devested of all claims of
Gross thereto, and of all the incidents attaching to a conditional
sale. The question of conditional sale, therefore, and the pro-
tection of defendant as a l)ona fide purchaser of the property
Am. St. Rep. Vol. 101—5
66 American State Reports, Vol. 101. [Alabama,
without notice of plaintiff's title, as provided for in section 1017
of the Code, docs not arise, and requires no consideration. It i?
no defense generally to the action of trover that the defendant is
a purchaser for value, and without notice of the rights of the
real owner: 26 Am, & Eng. Ency. of Law, 1st ed., 731. The
title to the property being absolutely in tlie plaintiff, which wa*
entitled to its immediate possession, it was attached by the de-
fendant and one Peters, judgment creditors of said Gross, and
their writs of attachment were levied on it as the property of
said Gross, and it was sold under said attachments as his prop-
erty— the defendant becoming the purchaser. In buying at.
the sheriff's sale under attachment against Gross, caveat emptor
applied, and defendant acquired no greater title than Gross had
at ^^^ the time of the sale; and under the facts of the case
as agreed on, he had no title: Goodbar v. Daniel, 88 Ala. 533^
16 Am. St. Rep. 76, 7 South. 254; Lindsay v. Cooper, 94 Ala.
178, 33 Am. St. Rep. 105, 11 South. 325, 16 L. R. A. 813^
Clemmons v. Cox, 114 Ala. 350, 21 South. 426; Ezzell v. Brown^
121 Ala. 150, 25 South. 832.
The attachment of Peters was levied on the property by a
constable, that of defendant by a sheriff, who took the property,
and sold it under both attachments, the defendant l>eing the
purchaser. On the undisputed facts, the plaintiff had the legal
title to the property, and the right to its immediate possession,,
and the possession of the const<able and slieriff under the attach-
ment writs, being illegal, the property was not, as contended
by defendant, in the custody of the law: Bissell v. Lindsay, 9-
Ala. 162; Governor v. Gibson, 14 Ala. 326, 331; Easly v. Dye,
14 Ala. 158, 166; Freeman on Executions, sec. 268. "Any in-
termeddling with the property of another, or the exercise of
dominion over it, whether by the defendant alone or in con-
nection with others, in denial of the owner's rights, is a eon-
version, though the defendant had not (himself) the complete
manucaption of the property": Boiling v. Kirby, 90 Ala. 215,.
24 Am. St. Rep. 789, 7 South. 914; BoutwellV. Parker, 124
Ala. 341, 27 South. 309.
If there was any error in overruling the demurrer to plea
12, it was error without injury, since the defendant in the trial
had the benefit under other pleas of the defense set up in that
plea.
The court charged the jury that if they believed the evidence
they would find a verdict for the plaintiff, and assess the dam-
ages at the agreed value of the engine and Ijoiler, with interest.
April, 1904.] Milner & Kettig Co. v. De Loach Co. 67
from the date of the levy by defendant until the trial, and in
this charge we have been unable to discover any error.
Affirmed.
To Place Property in the Custody of the Law, a valid levy is essen-
tial: Cedar Eapids Pump Co. v. Miller, 105 Iowa, 674, 67 Am. St.
Rep. 322, 75 N. W. 504. Property unlawfully or illegally taken is
not in custodia legis: Oilman v. Williams, 7 Wis. 329, 76 Am. Dec.
219; Pitkin v. Bumham, 62 Neb. 385, 89 Am. St, Eep, 763, 87 N. W.
160, 55 K E. A. 280.
The Conversion of Personal Property takes place whenever a person
who is neither the owner nor entitled to the possession exercises
dominion or control over it, inconsistent with or in defiance of the
rights of a person who is either in possession or entitled to the im-
mediate possession thereof: See the monographic note to Boiling v.
Kirby, 24 Am. St. Eep. 795-819; Wing v. Milliken, 91 Me. 387, 64
Am. St. Eep. 238, 40 Atl. 138. See, also, Doolittle v. Shaw, 92 Iowa,
348, 54 Am. St. Eep. 562, 60 N. W. 621, 26 L. E. A. 366; Canning v.
Owen, 22 E. I. 624, 84 Am, St. Eep. 858, 48 Atl. 1033; Johnson v. Wil-
son, 137 Ala. 468, 97 Am. St. Eep. 52, 34 South. 392; Eosencrantz v.
Swofford Bros. Dry Goods Co., 175 Mo. 518, 97 Am. St. Eep. 609,
75 S. W. 445; Marshall etc. Grain Co. v. Kansas City etc. E, E. Co.,
176 Mo. 480, 98 Am. St. Eep. 508, 75 S. W. 638.
The Rule of Caveat Emptor applies to purchasers at judicial sales:
Hendrix v. Southern Ey. Co., 130 Ala. 205, 89 Am. St. Eep. 27, 30
South. 596; Hammond v. Chamberlain Banking House, 58 Neb. 445,
76 Am. St. Eep. 106, 78 N, W. 718, Compare People's Bank v. Bram-
lett, 58 S. C, 477, 79 Am. St. Eep. 855, 36 S. E. 912.
CASES
IN THE
SUPREME COURT
OF
CALIFORXIA.
GREEX V. LOS AXGELES TERMINAL RAILWAY CO.
[143 Cal. 31, 76 Pac. 719.]
EAILEOAD TRACK— Negligence in Crossing.— One wlio steps
upon a railroad track ininieiliatoly in front of a train movinfr at an
excessive speed, -u-ithout <,Mviiiir tiie customary signals, V)ut visible for
the last eight hundred feet of its course, is guilty of contributory
negligence, as a matter of h-nv. (p. 74.)
NEGLIGENCE, CONTRIBUTORY— Concurrent Negligent Acts.
"^riie rule tliat a jtlaintitT 's contributory negligence does not Viar his
right to recover where the defendant, after discovering Ins danger,
fails to use ordinary care to avoid injuring liim, has no application
■when Itoth parties are guilty of concurrent acts of negligence, each
of which, at the very time when the accident occurs, contributes to
it. (p. 7.3.)
RAILROAD TRACK — Person Crossing.— An Engineer may As-
.siime tliat a person approacliing the railroad is in the possession of
lier onlinary faculties, and will retain lier position of safety and not
recklessly expose herself to danger by crossing the track in front
of tlio approaching train. He is not req\iircd, therefore, to check
the Sliced of the train to enable her to cross in front of it, nor to
ascertain whether she is aliout to do so; if, after she steps upon the
track, he does all in Ids jtower to avert an accident, this is all the
law rcqiiin-s. {\>\). 7S, Si.)
Cii.l.on. I'lioinns & iralstend. A. S. Tral.-tcad and Goodrich
(It .^^(;('utl•lll•Il. f(ir tlic a])]»cllant.
1!. A. TJiiLT and Iv A. 'Mc-crvo, for tlie respondent.
■"•* l.Oli'IdAX. J. 'J'liis a.clion is l)ronolit l)y ])laintifr to re-
(■(iM'T i'iania,i:i-.s t'nr tlic dratli id' his wife, alK^^od to liave licrn
(icra.-iMjird tlirniiili ilii' ni'jli.LTi'nt oprration of a locomotive and
train 'd' (^nrs hv the ciiijiliiyt'- t>\' derundaut, wilhiu the corporate
liinil.- of the city uf \.v> .\!iL;"!<'S.
C'.S)
April, 1904.] Green v. Los Angeles Terminal Ey. Co. G9
The case was tried by the court without a jury, and judg-
ment rendered in favor of plaintiff for five thousand dollars.
This appeal is from the judgment and from an order deny-
ing defendant's motion for a new trial.
These were both subsequently affirmed by this court in Bank,
but, a rehearing having been granted, the matter is now again
before us for disposition.
In our judgment, the sole point involved is whether the plain-
tiff's intestate was guilty of such contributory negligence as
precludes a recovery by plaintiff, and we think that this point
is fully presented, and is to be disposed of, under the findings
of the lower court made in the case.
This matter was very fully discussed in the former opinion
of this court above referred to, in considering the general find-
ing of the lower court, that plaintiff's wife had used ordinary
care and prudence, and had not been guilty of carelessness or
negligence contributory to the accident in which she lost her
life.
We are entirely satisfied with the views there expressed upoQ
the doctrine of contributory negligence as applied to the gen-
eral finding, and readopt them.
In this respect that opinion declared :
"The evidence, though sharply conflicting, is sufiicient to
support the findings of the superior court, that the train, con-
sidering the locality, was moving, at the time of the accident,
at an excessively high and dangerous rate of speed (lietween
twenty-five and thirty miles an hour), upon a descending
grade, without steam, making but little noise, and without giv-
ing any of the statutory and customary signals, by sounding
its whistle, or ringing its bell. But neither the evidence nor
tlie specific findings of the court sustain the more general find-
ing to the effect that plaintiff's wife in approaching ^^ the
track of defendant, at the place where slie was killed, used ordi-
nary care, and did that which an ordinary prudent person would
have done under the circumstances, and did not by her own
carelessness, or negligence, in any wise contribute to said acci-
dent or injury. The deceased was a woman of mature age, in
good health, and in full possession of all her faculties. She ap-
proached the track of defendant on foot and by daylight, at
a point from which it was plainly visible to a distance of eiglit
hundred feet to the eastward, beyond which it made a curve
to the north. When thirty feet distant from the track slic was
seen to look toward the cast and then immediately advance
70 American State Reports, Vol. 101. [California,
along a path which crossed the track at an angle of thirty de-
grees. As the track extended nearly east and west, and her
course was from southeast to noi-thwcst, this caused her face
to 1)C turned partly away from the train, which was approach-
ing from the east. It is to be inferred that when she looked
toward the east from the point thirty feet distant from the
track, tlie train had not rounded the curve and was out of view,
for she advanced slowly along the path, without again looking
up, and when in the act of stepping on the track was struck
by the locomotive and killed.
'^'Undor these circumstances it is clear, in view of numer-
ous decisions of this court, and of tlie great weight of au-
thority elsewhere, that she cannot be ae»(uitted of culpable
negligence directly contributing to the fatal result. While it
is true that negligence is ordinarily a question of fact, it is, in
some cases, a conclusion of law. In the case of Herbert v.
Southern Tac. Co., 121 Cal. 230, 53 Tac. 651, Justice Temple,
delivering the opinion of the court, after laying down the gen-
eral rule, stated the exception as follows:
" 'But cases arising from injuries suffered at railroad cross-
ings have been so numerous, and upon certain points there has
been such absolute accord, that what will constitute ordinary
care in such a case has been precisely defined, and if any ele-
ment is wanting, the courts will hold, as matter of law, tliat t]\o
plaintiff lias been guilty of negligence. And wiien injury re-
sults which might have been avoided by the use of proper care,
the plaintiff cannot recover, although the defendant has also
been guilty of negligence. In this special case the amount
of fare, as well as the nature of it, has been ^^* settled.' To
illustrate tliis view he proceeds as follows: "^The railroad track
of a steam railway must itself he regarded as a sign of danger,
and one intending to cross must avail himself of evcrv o])]^or-
tunity to look and listen for approaching trains. Wiat lie
must do in such a case must dcjioiid upon circumstances. ]f t!io
view of the track is obstructed, he sliould take greater paiii<
to li>tcn. If, taking these precautions, he would have seen or
heard the ap])roaching train, the v(M-y fact of injury will raise
a prrsuinption that he did not take the ro(iuired precaution.'
'•The lan,2rua[:e hore (niotcd. from one of our own decision^,
is strictly applicalilc to the present ease. If plaintifl's wife
bad taken tlic })rccamion to look, and liad availed herself of
ovrrv opportunity slie liad to look for the approaching train,
she need not have been injured, and we are not obliged to resort
April. 1904.] Greex v. Los Angeles Terminal Ry. Co. 71
to any presumption to establish her failure to take the required
precaution, for the evidence and the findings show that after
looking along the track toward the east once, when she was
thirty feet distant therefrom, she did not look again, but, turn-
ing her face in an opposite direction, walked so slowly that the
train, coming from a point beyond her view at the time she
looked, could travel over eight hundred feet while she was cov-
ering the thirty feet between her point of observation and the
nearest rail of the track. The only answer of the respondent
to the claim that this was negligence per se is, that the precau-
tion she took would have been entirely sufficient if the train
had not been running at a reckless rate of speed, and that she
had a right to assume that it would only move at a lawful and
proper rate. But this argument also is answered by the Herbert
case, where Judge Temple, commenting on a similar contention,
says : 'The defense of contributory negligence implies that de-
fendant may have been guilty of such negligence as would jus-
tify a recovery by plaintiff, if he were not also in default.' There
is, in other words, no occasion for the application of the rule
as to contributory negligence, except in cases where it is shown
or assumed that the defendant has been guilty of actionable
negligence. When such negligence is not shown, he is for that
reason alone free from any liability, and only wlien it is shown
has he any occasion to exonerate himself by proof of contributory
negligence on the part of the plaintiff. It is no ^"^ excuse,
therefore, for plaintiff's wife that the train was running faster
than was proper at that point. There was no law or ordinance
restricting its speed to any particular rate, and if, as the trial
judge concluded, the speed was, under the circumstances, exces-
sive, a reasonably careful person would have guarded himself
from the consequences of such negligence by the easy and simple
precaution of looking, when about to pass from a position of
safety to a position of danger. A person on foot, in possession
of all his faculties, and in complete control of his own move-
ments, stepping on a railroad track immediately in front of a
train which has been moving eight hundred feet at a speed of less
than thirty miles an hour, in full view, is clearly guilty of negli-
gence. Upon this point the case of ITolmes v. South Pacific
Coast Ey. Co., 97 Cal. 1G7, 31 Pac. 835. is conclusive authority.
There it was said: '\ railroad track upon which trains are con-
stantly run is itself a warning to any person who has readied
years of discretion, and who is possessed of ordinary inti^l]'-
gence, that it is not safe to walk upon it, or near enough to it
72 American State Eeports, Vol. 101. [California,
to be struck by a passing train witlioiit tbc exercise of constant
vigilance, in order to be made aware of the approach of a
locomotive, and thus be enabled to avoid receiving injury; and
the failure of such person, so situated with reference to tbe
railroad track, to exorcise such care and watchfulness, and to
make use of all his senses in order to avoid the danger incident
to such a situation is negligence per so.' This statement of the
doctrine of negligence per se, made ton years ago, w'as based
upon several decisions of this and other courts, cited in the
opinion of Justice Dc ITavcn, and tlie rule has been applied in
a number of more recent cases decided liere: See Herbert v.
Southern Tac. Co., 121 Cal. 227, 53 Pac. G51; Bailey v. Market
Street Ry. Co., 110 Cal. 329, 42 Pac. 914; Leo v. Market Street
Py. Co., 135 Cal. 295, 67 Pac. 7G5; Green v. Southern Cal. Py.
Co.. 138 Cal. 1, 70 Pac. 926; Warren v. Soutliern Cal. Ey. cJ.,
138 Cal. 1, 70 Pac. 926, and cases cited.
""In otlier Jurisdictions tlie same doctrine lias been frequentlv
applied in cases closely resembling the present. These decisions
luive been cited in the briefs of counsel, and it is unnecessary
to repeat the citations here, but we will quote the language used
by the judges in one or two instances in discussing a state of
facts substantially the same as those which we have l)efore us.
iiH '-'Commenting upon a case in which the injured party had
looked for an approaching train when some distance from the
track and had then driven on wiibout again looking, the supreme
court of Xew Jersey says: 'If risk is inherent in a continuing
state of things, the duty to exercise reasonable care is a continu-
ing obligation. This at least must be true, that a man is negli-
gent wlio attempts to drive across a railroad line after listening
and looking only once toward a quarter from which a train may
approach, if tlieso acts of attention and observation are ])er-
formed when tbc ol)server is so far from tbe crossing that before
he will reach it a train coming from that quarter, and oi)en to
his further attention and observation, has time to advanw so
as to endanger him.' After citinji several decisions to tbe saine
efToct tbe court ])roceeds : 'Tbeso opinions show that person^,
wbo cross railroad tracks, eitlier on foot or in vehicles, are
strictly licld to tbe duty of careful oliservation and attention.
In cacb of tlio-;e cases tbo plaintiff was injured notwitbstnnding
some care on bis part. Tn eacb case* a judgment of nonsuit was
sustained. In eacb ease tlie defect in plaintiff's cause of action
wa^ tbe same. 'I'lie defect was, tbat tbough he exercised care
at lir.-t, lie did not continue to be careful, but became inattentive
April, 1904.] Green v. Los Angeles Terminal Ey. Co. 73
to his surroundings before he reached a place of safety' : Winter
V. New York etc. R. R. Co., G6 N. J. L. 677, 50 Atl. 339.
"In Central of Georgia Ry. Co. v. Forshee, 125 Ala. 199, 27
South. 1010, the supreme court of Alabama says : 'It is equally
clear, on principle and authority, that this duty must he per-
formed at such time and place, with reference to the particular
situation in each case as will enable the traveler to accomplish
the purpose the law has in view in its imposition upon him.
He must stop so near to the track, and his survey by sight and
sound must so immediately precede his effort to cross over it,
as to preclude the injection of an element of danger from ap-
proaching trains into the situation between the time he stopped,
looked, and listened, and his attempt to proceed across the track.
If he stops so far from the railway as that a train, which could
not be seen from-that point, could and does reach the crossing by
the time he has traversed the intervening distance and gotten
on the track, he negligently contributes to the resulting col-
lision and injury, and the same ^^ is true if, though he stop at
the track, he lingers there after looking and listening, and delays
crossing until a train not in sight or hearing when he stopped,
looked, and listened has come meantime upon the scene, and
collides with him when he does attempt to cross.'
"The court of appeals of Xew York, speaking of the duty of
a person about to cross a railroad track, says : 'To be sure, the
statute requires a railroad company to give specified warnings,
but it neither takes away a man's senses nor excuses him from
using them. The danger may be there; the precaution is sim-
ple. To stop, to pause, is certainly safe. His time to do so is
before he puts himself in the very road of casualty': Wilds v.
Hudson River R. R. Co., 24 X. Y. 430.
"The supreme court of Minnesota says : 'We are unable to find
in the record any excuse for the intestate's disregard of his ob-
vioiis duty to himself, to use his eyesight at the time when he
could easily have discovered the danger of collision, which was
up to the very moment he stepped upon the main track. Until
then he had full control of his movements. He could by the
slightest move of his head toward the east have discovered his
hazard, and by the slightest check of his movements have avoided
the same': Olson v, Xorthern Pac. R. R. Co., 84 Minn. 258, 87
N. W. 843.
"In all of the cases from which the foregoing quotation? liave
been made, and in many otiiers cited in the briefs, tlie negligence
charged against the defendant, and proved or assumed for the
7-i American State Reports, Vol. 101. [California,
purpose of the decision, was excessive speed in the movement
of trains, or omission of customary si^^als by sounding the
whistle or ringing the bell — tlie same character of negligence,
that is to say, which plaintiff contends excused his wife from
looking a second time for the approach of the train. They there-
fore sustain both propositions laid down by Justice Temple
in the Herbert case, as stated above, and in the absence of more
direct authority to be found in our own decisions would war-
rant us in holding, if the question were a new one, that a person
who witli his eyes open steps upon a railroad track immediately
in front of a moving train, visible from a point eight hundred
feet distant from the point of collision, is necessarily, and as
matter of law, guilty of contributory negligence."
^^ The foregoing from the former opinion, in our judgment,
contains an accurate statement of the evidence, a clear consid-
eration and discussion of the findings, and correctly announces
and applies the doctrine of contributory negligence to the case
at bar, from all of which it appears that, while the defendant
was guilty of negligence, plaintiff's intestate was likewise guilty
of such contributory negligence as precluded a recovery by plain-
tiff.
Under such circumstances the judgment and order must be
reversed, unless there is some other feature of the case pre-
sented by the findings upon which they can be sustained.
It is contended by respondent that such a feature exists, and
that it arises from a special finding of the court — Xo. 7 — which
is as follows: "As said train rounded said curve and came upon
said riuml)oldt street, going at a high and dangerous rate of
speed, downliill, no l)ell on the engine thereof being rung, or
other warning of its approach licing given, the engineer in
charge of the engine on said train saw said Bessie (iroen and
know that she was walking on said path, and crossing said
JTuniboldt street, ahead of said train, and that she gave no
evidence of knowledge of the approach of the train. That, not-
withstanding such facts, said engineer did not slacken or lessen
the speed of said train, or attempt to give said Bessie Green
warning of its ai)proach. That as, and just after said train
crossed said Avenue ^3, going toward said I^essie (^ireen, and at
such hig1i rate of speed, said engineer still saw said Bessie Creen,
and >till saw and knew she was advancing upon said track, and
that ftlie still gave no evidence of knowledge of the ap;)roach
of said train, but s:;id en;:ineer still did not lessen the speinl
of said train, or Idow a wliisile or ring a !;ell. or give other warn-
April, 1904.] Green v. Los AxNgeles Terminal Ky. Co. 75
ing of the approach of said train, nor was any given until the
train was within ten or fifteen feet of the point of the accident.
That said engineer could have stopped said train at any time
within two hundred feet after starting to do so. That when
within ten or fifteen feet from the place of such accident the en-
gineer blew the whistle, applied the air-brakes, and reversed
the engine, and did all in his power with the appliances he had
to stop the train, and the fireman rang the bell."
Eespondent's contention is, that while the general rule may
be, that one cannot recover where his neglect contributed
'** proximately and directly to the accident, yet this rule is sub-
ject to the exception that where a defendant, discovering that
a party has placed himself in a place of danger or peril, refuses
or fails to do some act within his power which would have pre-
vented or avoided the accident, then the defendant will be liable,
notwithstanding the neglect of the plaintiff may have contrib-
uted to the injury, and contends that this finding presents such
a condition as calls for the application of the exception to the
general rule in the case at bar.
There is no question but that this exception to the general
rule exists, and is usually extended to that limited class of cases
where the failure to avoid the injury after discovery of the dan-
ger to plaintiff amounts to gross neglect and approaches actual
wantonness on the part of the defendant. The rule on this sub-
ject is tersely and clearly stated in Shearman and Eedfield on
ISTegligence, section 99, as follows : "It is now perfectly well
settled that the plaintiff may recover damages for an injury
caused by defendant's neglect, notwithstanding the plaintiff's
own negligence exposed him to the risk of injury, if such injury
was more immediately caused by defendant's omission, after
becoming aware of plaintiff's danger, to use ordinary care for
the purpose of avoiding injury to him."
It applies in cases where the defendant, kno\ving of plain-
tiff's danger, and tliat it is obvious that he cannot extricate him-
self from it, fails to do so something which it is in his power
to do to avoid the injury. It has no application, however, to
a case where botli parties are guilty of concurrent acts of negli-
gence, each of which, at the very time when the accident occurs,
contributes to it.
This whole subject is fully discussed in Holmes v. South
Pacific Coast Ry. Co., 97 CaL^lGg, 31 Pac. 835, where the plain-
tiff, walking up and down the defendant's track at a station
while waiting for an approaching train, negligently remained
76 American State Eeports, Vol. 101. [California,
on the track and was struck by the locomotive. In that case,
discussing the liability of the defendant, notwithstanding the
plaintiff's contributory negligence, this court quotes approv-
ingly the language of the supreme court of Maine in O'Brien
V, McGlinchy, G8 Me. 552, as follows: "But in cases falling
within the foregoing description, where the negligent acts of the
parties are distinct and independent of each other, the act *^ of
the plaintiff preceding that of the defendant, it is considered
that the plaintiff's conduct does not contribute to produce the
injury, if, notwithstanding his negligence, the injury could ha^■e
been avoided by the use of ordinary care at the time by the de-
fendant. Tills rule applies usually in cases wliere the plaintiff,
or his property, is in some position of danger from a threatened
contact witli some agency under the control of defendant, when
the plaintiff cannot, and tlie defendant can, prevent the in-
jury But this principle cannot govern where both par-
ties are contemporaneously and actively in fault, and by their
mutual carelessness an injury ensues to one or both of tliem.'^
And, after quoting thus far from that decision, our court then
proceeds: ''This, we think, may be regarded as a correct state-
ment of the law upon this point, and as furnisliing a clear and
definite rule by which to determine in any case whether or not
the negligence of the person injured may be said, in a legal
sense, to have contributed to such injury; and when we apply
this rule to the case here, it is at once seen that, even if it should
be conceded that there was negligence upon the part -of the
defendant in its management of the train at the time of and jutt
preceding the ac'cident, still the plaintiff would not be entitled
to recover, as such accident could not have occurred without
the concurrent and active negligence of the deceased at the
time. The defendant was not the only one who could have pre-
vented the accident, but, on the contrary, if the deceased had
himself used ordinary care at the time, he could not possibly
liave been harmed by defendant's locomotive, which was con-
fined to the narrow track upon Avhich it ran. I'^p to the very
moment that he was struck by the engine, it was within his
power to escape the injury which he received 1)y simply moving
tit a ])lare of safety upon the sidewalk, and ho wonld have
realized tlie necessity for such action on his part but for his own
negligence at the time in not looking or listening for the ap-
proach of the train."'
The general rule and the exception are further fully discussed
April, 1904.] Green v. Los Axgeles Terminal By. Co. 77
by Justice Angellotti in the recent case of Harrington v, Los
Angeles Ey. Co., 140 Cal. 514, 98 Am. St. Rep. 85, 74 Pac. 15.
In the case at bar, however, giving the respondent the full
benefit of any favorable deduction which can be made from
^^ the quoted finding, still it docs not present any condition to
which the exception to the general rule can apply.
All that this finding in effect declares is, that the defendant
was guilty of negligence in failing to give the usual warnings
and running its train at an excessive rate of speed; that tiie
engineer saw Bessie Green approaching the track along a path
which crossed it; that she gave no evidence of knowledge of tlie
approach of the train; and that, notwithstanding such tact, the
engineer did not slacken or lessen the speed of the train, or
attempt to give said Bessie Green warning of his approach.
But during all this time, it will be observed, Bessie Green
wiis in a position of absolute safety; she was not upoii the de-
fendant's track, but walking upon the pathway approaching
it. There was nothing to indicate to the engineer that she
would leave that place of safety and put herself in one of
danger. The mere fact that she gave no evidence of a
knowledge of the approach of the train while walking along
the pathway toward the track did not indicate to the engineer
that she was about to place herself in a position of peril. It is
a matter of common observation that thousands of people
daily cross in front of trains and approach crossings for that
purpose, witliout gi^'ing any indication that they are aware
of the coming of the train. They proceed, determining for
themselves whether they have sufficient time to make the cross-
ing safely or not, solicitous only for their personal safety, and
giving no indication to the engineer whether they will hax:ard
the risk of crossing, or pause until the train passes by, or in any
manner indicating that they are aware of the approach of the
train, or are concerned aljout it.
And as to this quoted finding there is nothing in it to in-
dicate that as far as the engineer knew or could liave known,
Bessie Green might not have been perfectly well aware of the
approach of tlie train and still have given no indication or mani-
festation of that knowledge. The ]a\v cast upon her the duty
of looking to see, when approaching the point of danger,
whetlier there was a train in siglit whicli might prevent her
crossing the track in safety, and the engineer had a right to as-
sume that she had taken the precaution whicli the law required
78 American State Keports, Vol. 101. [California,
to insure her owa safety, was aware of the situation, "** and be-
ing in a place of safety would remain there and not pass ta
a point of danger.
And unless it can be said as a matter of law that it is the
duty of an engineer to check his train when he sees one ap-
proaching a track and giving no indication of knowledge of
the coming train, then this finding amounts simply to a finding
that the engineer was negligent, which, of course, is conceded
in the case.
This is not. however, the negligence which we are now dis-
cussing, and for which the defendant is claimed to be liable.
Its liability is for negligence after the engineer had discovered
that Bessie Green had placed herself in a position of actual
danger.
During all the time that she was approaching along the path-
way to the crossing she was in a position of absolute safety,
and there is no rule of law which charged the euginocr with
knowledge that she was about to change her position of safety
for one of peril. On the contrary, the engineer had a right to
assume that she was in possession of her faculties and woubl re-
tain her place of safety, and not recklessly expose herself to
danger. To hold that the engineer, because she gave no in-
dication of knowledge of the approach of the train was bound
to assume that she would heedlessly leave a place of safety, put
lierself upon the track, and endanger her life, would be to
revise the rule which, as far as we are advised, is universal in
all jurisdictions, and certainly is the rule in this state, that
where an engineer sees a person approaching a track he has the
right to presume that the person is in possession of his ordinary
faculties, alert to the danger which may ensue from passing
trains, that he will not attempt to cross in view of the train,
and is therefore not required to check the speed of the train to
to enable him to cross in front of it, or to ascertain wliether
he is about to do so.
In Green v. Southern Pac. Co., 122 Cal. 5G5, 55 Pac. 579,
an action brouglit to recover damages for the death of the hus-
band killed at a crossing, this court says : "Unless the defendant
knew, or had reason to believe, that the deceased was from soine
cause not possessed of the ordinary ability to care for himself,
it had the right to presume that he possessed such ability and
would take the ordinary precautions to protect ^^ himself fron\
injury": See, also, Holmes v. South Pac. Coast Ey. Co., U7
Cal. ici, 31 Pac. 831.
April, 19 04. J Geeen v. Los Angeles Terminal Ky. Co.
79
And the general rule upon this subject is clearly expressed
in Olson v. Nortliem Pac. K. R. Co., 84 Minn. 258, 87 N. W.
843, heretofore referred to. That was a case where the deceased
was killed in attempting to cross a railroad track, and the court
in its decision comments on the facts and declares the rule of
law applicable to them. It says : "We are unable to find in the
record any excuse for intestate's disregard of his obvious duty
to himself to use his eyesight at the time when he could easily
have discovered the danger of collision, which was up to the
very moment he stepped upon the main track.
"Until then he had full control of his movements. He could,
by the slightest movement of his head toward the east, have
discovered his hazard, and by the slightest check of his move-
ments have avoided the same. Under such circumstances his
obvious want of care must preclude a recovery in this case.
.... Plaintiff strenuously urges that, notwithstanding plain-
tiff's intestate may have been negligent, yet the servants in
control of the engine of the freight train could, with ordinary
care, have discovered his danger, and their failure to ring the
bell, or make some effort to avoid the accident, after they could
have seen intestate, authorizes the submission of the case, not-
withstanding such contributory negligence. We are unable
to adopt this view. The reasonable presumption that due care
will be exercised by all persons in mutual relation when care
is required is not a partial or one-sided doctrine, but applies
to each alike. It seems clear to us that while the intestate
might have the right to say that all signals should be observed
by the defendant's servants in the exercise of ordinary care by
such, the latter would also have the right to indulge in the same
presumption with reference to the conduct of the unfortunate
man wlio was deprived of his life by his own negligence, and
presume that he would do his duty likewise. The engineer
could not be held to suppose absolutely, as a matter of law, that
a young man of good intelligence, with average faculties, before
going on a railway crossing, would keep his head turned away
from the direction in which a train might be approaching, when
the slightest glance of the eye, even at the last moment, would
apprise him of the danger, or the checking of his movements,
upon ^^ the plainest dictates of common prudence, would have
protected him from injury."
In the case of Gahagan v. Boston etc. R. R. Co., 70 X. H.
441, 50 Atl. 84G, 55 L. R. A. 426, which was likewise an action
ioT injuries received at a crossing, the court, discussincj the
80 American State Eepouts, Vol. 101. [California
reciprocal duties of pedestrians and railroad trains, uses the
following language: ''In the present case there is evidence that
wlien the plaintilT was first seen by the engineer the collision
could have been prevented. If the engineer knew, or ought to
liave known, then that the plaintiit would be upon the crossing
when the train reached it, and could have avoided the collision,
liis faihire to do so is the proximate cause of the injury. As
there was evidence that the collision might have been prevented
by him, the sole remaining question is whetlicr, upon the evi-
dence, reasonable men might find the engineer ought then to
have foreseen the plaintiff's negligence. The bare fact that
tlie plaintilT was seen approaching the track is not sufiieient
to authorize such a finding. If it were, tlie rule heretofore laid
down, and found to be approved by the authorities and the rea-
son of the case, that it is the duty of the higliway traveler to
stop and allow the train to pass, would be reversed. It would
then become the duty of the train to stop and wait for the
person on foot to go by. This would be unreasonable, impracti-
cal)ie, and put an cud to the modern systc^i of rapid trans-
])ortation demanded ]>y the public, and to effectuate wliich rail-
roads are authorized by the state. Tlie company's servant may
ordinarily presume that a person apparently of full age and
capacity, who is walking upon the track at some distance before
the engiiio, will leave it in time to save hiin.-clf from harm, or,
if approaching the track, that he will stop if it becomes danger-
ous for him to cross it." To the like eU'ect we assign a few
other authorities: Beach on Contributory Xegligenee, sec. o'Jl;
Cleveland etc. Ey. Co. v. Miller, 111) Ind. 4'JO, -it) X. E. 445;
Cuyer v. :\[is?ouri Tac. ]Jy. Co., 174 :^lo. IM!, 73 S. W. oS 1 ;
Kirlley v. Chicago etc. IJv. Co., (!.") Ft'd. 3SG ; Boyd v. Wabash
Western Ey. Co.,' 105 :Mo.";'.71, 1G S. W. t)09; Smith v. Norfolk
etc. JJy. Co.. 114 X. C. 72S, 1!) S. ]■:. 8G3, 25 L. IJ. A. 2S7;
MeXai) V. T4iited By. etc. Co., 04 :\[d. 710, 51 All. [21; Bider
v. Syracuse etc. Trans. Co., 171 X. Y. 13:», G;) ^. ]■]. S3r.. 5.S
L. b'. a. 125; Jackscm v. Kansas City etc. By. Co., 157 Mo. G21,
bU Am. St. Be]). G50, 58 S. W. 32. "
.\s the authorities thus declare that the engineer had a rigiit
'*' to assume (as the court in this case found the fact to he)
lliat Im^sIc <lreen was in the full ])os>ession of lier naiural
facnliies, and to furiher a.-sume that as she was in a place of
safetv on the j)ath she would not expose herself to the dangir
of atlcmpi ing to cross the track, tlie fiuestion arises. When did
Bu^isie (Ireen phu-fd lier.-elf in a position of danger, and when
April, 1904.] Green v. Los Angeles Terminal Ry. Co. 81
«he so placed herself did the plaintiff's employes exercise every
■effort to prevent injury to her? This question is answered
both by the evidence and the findings. In the case at bar, as
in the Minnesota case above quoted, it is apparent that Bessie
<3rreen vras guilty of no contributory negligence up to the moment
when she stepped upon the defendant's track in practically the
actual presence of the approaching train. Until then she was
in perfect safety, and, as said in the Minnesota case, "until then
[which was to the very moment he stepped upon the main track]
he had full control of his movements. He could by the slightest
movement of his head toward the east have discovered his haz-
ard, and by the slightest check of his movements have avoided
the same."
Having then placed herself in a position of peril only from
the moment she stepped from the pathway to the track, did
the defendant's engineer, when her peril thus arose, have a
clear opportunity of avoiding injuring her, and did he fail
to do so? We are satisfied that this inquiry must be answered
in the negative, and that this conclusion is irresistible when
we consider the finding above quoted — special finding Xo. 7 —
in connection with another special finding — ISTo. 6.
This last finding is, "That just as Bessie Green stepped
upon defendant's track to cross the same, going as above de-
scribed, she was struck by the engine of defendant's train, run-
ning down and along said track."
It is apparent from the quoted finding, Xo. 7, that from
the moment the engineer discovered that Bessie Green was
about to pass from the footway onto the track — from her place
of safety to one of peril — he did all in his power to avert the
accident, because it is expressly found, "that when within ten
-or fifteen feet from the place of such accident the engineer
blew the whistle, applied the air-brakes and reversed the engine,
and did all in his power, with the appliances he had to stop the
train, and the fireman rang the bell."
*^ Now, taking these findings together, it is quite clear that
Bessie Green was guilty of contributory negligence in stepping
from a point of safety to one of danger in the presence of
the train, and without taking any of the ordinary precautions
which the law cast upon her in her situation; that she was
only placed in such peril at the moment when she stepped
from her point of safety upon the pathway to the track; and
that from the instant when she placed herself in that situation
of peril, the defendant's employes did all in their power to
Am. St. Rep. Vol. 101—6
S'Z American State Reports, Vol. 101. [California,
avert the accident, but without avail. This was all the law
required of them.
As, then, the special finding relied on by respondent is un-
availing, considered in connection with the other findings, to
take the case from the operation of the general rule, that con-
tributory negligence will defeat a right of recovery, and as it
appears that the proximate cause of the death of Bessie Green
was her own contributory negligence, the judgment in favor of
the plaintiff cannot be sustained, and it, together with the
order denying defendant's motion for a new trial, are reversed,
and the cause remanded.
McFarland, J., and Henshaw, J., concurred.
AXGELLOTTI, J., concurring. I concur. Further con-
sideration of the second question discussed in the foregoing
opinion — viz., the question as to the liability of the defendant,
notwithstanding the contributory negligence of the d(x;cased- —
has forced mo to the conclusion that the case is not brought by
tbe findings within tlie exception to the general rule that contri-
butory negligence of the injured ]ierson will bar a recovery. ^ly
views upon tbis general question are fully set forth in the opinion
in Harrington v. Los Angeles Ky. Co., 140 Cal. 514, 98 Am.
St. Rep. 85, 74 Pac. 15.
Sliaw, J., concurred with Angellotti, J.
BEATTY, C. J., dissenting. I dissent. This case cannot be
distinguished on the facts from Lee v. Market Street Ey. Co.,
135 Cal. 295, G7 Pac. 7G5. If tlic judgment in that case was
founded upon a pro}x?r application of tbe doctrine of '"last clear
opportunity to avoid the injury," tbe judgment in tbis case
should **^ be atTirmed. In my o])inion delivered upon tbo
former hearing, in commenting upon tlie facts quoted in tbe
foregoing opinion of tlie court, I expressed tbe views to wiiich
I still adliere, as follows:
"Tbo rule of law a])])lical)le to tbe facts thus found is
settled l)y a series of decisions of tbis court, ^n tbe most
recent of tliosc cases (Lee v. Market Street My. Co., i:55 Cal.
v*')5. (i7 Pac. :r,3). it is briefly stated as follows: 'Oik^ baving
an opportunity by tbe exercise of jiroper care to avoid injuring
anotber mu>t do so. notwilbstanding the latter lias placed liini-
self in a position of danger l)y bis own negligence." This is
almost a literal quotation from Justice A'an Fleci's opini(m in
April, 1904.] Green v. Los Angeles Terminal Ry. Co. 83
Fox V. Oakland Cons. St. Ry., 118 Cal. 62, 63 Am. St. Rep.
216, 50 Pac. 27, where in support of the rule a number of cases
are cited from our own reports, including Esrey v. Southern
Pac. Co., 103 Cal. 543, 37 Pac. 501, in which case the rule is
thus stated: 'He who last has a clear opportunity of avoiding
the accident by the exercise of proper care to avoid injuring
another must do so.'
"In section 99 of Shearman and Redfield on Xegligence it
is said: 'It is now perfectly well settled that the plaintiff may
recover damages for an injury caused by the defendant's negli-
gence, notwithstanding the plaintiff's own negligence exposed
him to the risk of injury, if such injury was more immediately
caused by the defendant's omission after becoming aware of
plaintiff's danger to use ordinary care for the purpose of avoid-
ing injury to him.'
"This proposition is further amplified in the section cited,
and the text is supported by a long array of decided cases :
See, also, Cooley on Torts, 674.
""The essence of the doctrine seems to be, that contributory
negligence of the plaintiff is not a defense in actions of this
character, unless it is the proximate cause of the injury, and
it is not such proximate cause when the defendant, after
becoming aware of the danger plaintiff is in, or is evidently
about to place himself in, could avert the consequence by the
exercise of reasonable care. This sound and wholesome doctrine
applies even in cases whore no previous negligence on the part
of the defendant has contributed to lull the plaintiff into a
false security, and, a fortiori, it would have controlling force
in a case like the present, where, as found by ^^ tbe court,
the defendant was moving its train at an excessive and danger-
ous speed along a street of the city of Los Angeles without sound-
ing bell or whistle and without the use of steam. According
to the finding of the court, the engineer became aware of the dan-
ger into which plaintiff's wife was running, and might easily have
avoided tbe collision by slackening the speed of the train or by
warning her of her danger by giving the signals whicli, under
the lavv, it was his duty to give."
VAX DYKE, J., dissenting. I dissent, on the grounds stated
in the foregoing opinion of tlie cliief justice.
For Rvcciit Dccisinth'i iiy)on the question involved in the prinoipal
case, see McDermott v. Boston Elevated Ky. Co., 184 Mass. rJ6, 100
Am. St. Kep. 548, 68 X. E. 34; Mitchell v. Illinois Cent. E. E. Co.,
84 American State Keports, Vol. 101. [California,
110 Ala. 630, 98 Am. St. Eep. 472, 34 South. 714; Harrington v. Los
Angeles Ry. Co., 140 Cal. 514, 98 Am. St. Rep. 85, 74 Pac. 15; Pass-
man V. West Jersey etc. R. R. Co., 68 N. J. L. 719, 96 Am. St. Rep.
573, 54 Atl. 809, 61 L. R. A. 609; Kinter v. Pennsylvania R. R. Co.,
204 Pa. St. 497, 93 Am. St. Rep. 795, 54 Atl. 276; Day v. Boston etc. R.
R. Co., 96 Me. 207, 90 Am. St. Hop. 335, 52 Atl. 771; Cleveland etc Ky.
Co. V. Workman, 66 Ohio St. 509, 90 Am. St. Rep. 602, 64 N. E. 582. '
DI NOLA V. ALLISON".
[143 Cal. 106, 76 Pac. 976. J
JUDGMENT as Evidence Pending Appeal. — Tf a defendant
appeals from a judgment before a sheriff's deed is made to the plain-
tiff, or a sale made by him to a third person, the effect of the judg-
ment as evidence of the matters determined by it is suspended, even
though its execution is not stayed, (p. 88.)
JUDGMENT — Reversal as Affecting Judicial Sale. — If a mort-
gagee purchases the land at foreclosure, and sells it pending an ap-
peal taken without a stay of execution, the title of his grantee, who
is chargeable with notice of the defeasible title of his grantor, is
defeated by a reversal of the Judgment, (p. 89.)
JUDGMENT — Reversal as Affecting Judicial Sale. — The rights
of one whose property has been sold under a judgnuMit subsequently
reversed, do not depend, in California, upon section 957 of the Code of
Civil Procedure. That section is not restrictive of his rights, but is
a remedial statute to be lib.erally construed, (p. 89.)
JUDGMENT — Reversal and Restitution. — Wh(>re a mortgagee
purchases the land at foreclosure, and sells it pending appeal, his
vendee cannot, on the reversal of the judgment, invoke the protection
of section 957 of the (California Code of Civil Procedure, whicli au-
thorizes the court to make restitution so far as is consistent with the
protection of a purchaser " at a sale ordered bv the judgment." (p.
90.)
JUDGMENT — Reversal and Restitution.— Tf a mortgngoe pur-
chases the land at foreclosure, and sells it ponding appeal, tlie re-
versal of the judgment restores the mortgagor to his original estate,
and he does not need an order of restitution to enable iiiin to assert
his right thereto. Before the purchaser from the mortgagee can luive
his title quieted, he must estalilish a title in himself superior to that
of tlie mortgagor, (p. 90.)
NEW TRIAL — Sufficiency of Statement.— An objection that
the statement on motion for a now trial does not sufficiently specify
the particulars in which the evidence is insufficient to justify the
decision, will le overruled when it is stated therein: "The foreiroing
constitutes substantially all the evidence given upon the trial."
(p. 91.)
Xaplitlialv. Frci<l(>nric]i c^- Ackornian, Thomas V>. Dozicr an.d
IL M. Tiarstow, U)v tiio aiipcllaiit.
Charles W. Shick and Joscpli E. Barry, for the respondent.
April, 1904.] Di Nola v. Allison. 85
i»» HAERISON, C. Action to quiet title. Plaintiff's
title is derived as follows: In 1892 the defendants, D. E.
Allison, B. E. Sackett, and James Barron, were the owners of
the land described in the complaint, and executed a mortgage
thereon to Charles and Benjamin Golinsky. In 1893 the Golin-
skys brought an action for the foreclosure of this mortgage, in
which they obtained judgment January 5, 1895, directing a
sale of the lands in satisfaction of the mortgage debt. Under
this judgment the land was sold August 24, 1895, to the plain-
tiffs in the action, and on March 3, 1896, they received a deed
therefor from the officer who made the sale, and on March 24,
1896, they conveyed the land to the plaintiff herein, September
18, 1895, the defendants in the action appealed from the judg-
ment, without giving any bond staying its execution, and on
October 7, 1896, the judgment was reversed by this court:
Golinsky v. Allison, 114 Cal. 458, 46 Pac. 295. The plaintiff
brought this action March 19, 1897. Judgment was rendered
in his favor, from which and from an order denying a new trial
the present appeal has been taken.
109 rpj^g question presented by the appeal is whether the title
taken by the plaintiff under the conveyance from the Golinskys
was defeated by a reversal of the judgment under which their
title was derived. It is contended by the appellant that at the
time of the sale under the judgment the Golinskys took only a
defeasible title to the land purchased by them, and that the effect
of the reversal of the judgment was to set aside and vacate the
sale; and that as they could not transfer to the plaintiff any
greater interest than they themselves had, the title taken by him
under the deed from them was also defeated. The respondent,
on the other hand, contends that where the plaintiff purchases
the defendant's property at a sale had under his own judgment,
and, while the judgment is unreversed conveys it to a third per-
son, the title of his grantee will not be affected by a subsequent
reversal of the judgment ; and in support of this proposition
he relies upon section 957 of the Code of Civil Procedure, and
has also cited several cases from other jurisdictions.
The rule is unquestioned that if a stranger to the action pur-
chases the defendant's property at the execution sale, liis title
thereto will not be affected by a subsequent reversal of the judg-
ment (Freeman on Executions, sec. 347) ; the cliief ground
therefor being that given in Manning's Case. 8 Coke. 9(!. that
otherwise he would lose both his money and the land, and there
Avould be no inducement to purcliase at judicial sales. If the
86 American State Reports, Vol. 101. [California,
purchase is made by tlie plaintilT in the action, under the great
weight of authority, his title will be defeated by a sul)sequent
reversal of the judgment. This rule was adopted in this stale
in Reynolds v. Harris, 14 Cal. GG7, TG Am. Dec. 459. Whether
the reversal of the judgment will aiTect the title of the grantee
of the plaintHF who has thus purchased the land has been dif-
ferently decided in different jurisdictions; in some by reason
of statutory provisions, and in others depending upon tlie man-
ner in which the question has been presented. In those jnri-^-
dictions in wliich it is held that the title of the plaintilT Iiimseli',
who becomes the purcliaser, is not affected by a reversal of the
judgment, tlie courts necessarily hold that the title of his grantee
will not be affected, and the cases cited therefrom (Parker v.
Anderson, 5 T. B. **^ ]\Ion. 445, and Bickerstaff v. Del linger,
1 ]\Iurph. (5 X. C.) 272) need not be considered. In Nebraska
it is provided bv section 508 of the Code of Civil Procedure of
that state that the reversal of a judgment "^shall not defeat or
affect the title of a purchaser*' of land theretofore sold in satis-
faction of such judgment, and in the case of McAusland v.
Pundt, 1 Xeb. 211, 93 Am. Dec. 358, cited by the respondent,
the court invokes that provision in support of its decision. In
some of the cases cited on behalf of the respondent the court has
discussed and stated the general rules applicable to the title of
property purchased under a judgment which is sul)se(|U('ntlv
reversed, and the rule thus stated lias been followed in tho.-.'
states, without any discussion of the principles upon which the
rule is based, as authority in cases where the facts were widely
different. For exam])le. in ^leJilton v. Love. 13 111. 48G, 54 Am.
Dec. 449, which is referred to in suhsecjuent cases in that stati>
as the authority for their decision, the court says in its opinion:
"The riglits of third persons are not affected bv the reversal."
This expression was purely ohiter, for the co\irt held that ^Ic-
Jilton was not a "third person," inasmuch as he had taken an
assignment of the judgment and had control of the execuiioii
under whit-h he had purchased the land. This case, however.
is referred to as the aulhoritv for subse(]uent decisions in that
state which holil that the grantee of a plaintilf who ])urchases
at a sale under his own judgment is n(jt affected by a revei'sal
of ihe judirment.
Many of the cases cited bv the resj)on(lent did not involve the
ri.irlits of the purchaser at a '"sale unib^r a juil.irnx'nt'' wliicli
was afterward reverseil, hut the purchase was made where the
jutlginent had been a dire(.-r ailjudicat ion of the plaintiff's title
April, 1904.] Di Nola v. Allison. 87
to the land. And in the greater number of the eases cited by him
the purchase from the plaintiff was made before any step ha<l
been taken by the defendant for a reversal of the judgment, and
the purchaser was protected in his purchase upon the ground
that it was made on the faitli of a judicial declaration that
the title was in his vendor ; that a defendant who permits a final
judgment against him to remain of record without questioning
its validity can invoke no equity in his favor for disputing the
title of one ^^^ who has purchased his property in reliance upon
the correctness of that judgment : See Hunt v. Loucks, 38 Cal.
382, 99 Am. Dec. 404; Eector v. Fitzgerald, 59 Fed. 808, 8 C. C.
A. 277.
Horner v. Zimmerman, 45 111. 14, was a case of strict fore-
closure of a mortgage, and after the decree had been entered
the plaintiflE conveyed the land to a third person. The bill ot
review under which the decree was reversed was not filed until
two years thereafter. In Wadhams v. Gay, 73 111. 415, Flagler,
under whom the defendants derived their title, had obtained
a decree in 1854 declaring him to be the owner in fee of the land.
The bill of review under which the decree was reversed was not
brought until 1866. The court held that the purchases "inter-
mediate the time of the rendition of the decree and the suing
out of the writ of error," having been made in good faith for
value, in reliance upon the validity of the decree, were entitled
to be protected. In Guiteau v. Wisely, 47 111. 433, the judgment
under which the land was sold was rendered in September, 1860,
and at the sale in February, 1861, the plaintiffs became the
purchasers. They assigned the certificate of sale March 14,
1862 ; and in Xovember, 1863, the judgment was reversed upon
a writ of error sued out by the administrator of the judgment
debtor. The assignees of the certificate were held to be entitled
to the same protection as if they had purchased at the sale. It
does not appear at what time the writ of error was sued out, but
as the judgment del)tor died March 7, 1862, and letters of ad-
ministration upon his estate could not have teen granted until
some time thereafter, it is reasonable to assume that it was later
than March 14th, and that the assignees took the certificate with-
out any notice that the defendants questioned the validity of
the judgment. In McBride v. Longworth, 14 Ohio St. 349, 84
Am. Dec. 383, the bill of review under which the decree wa<
reversed was not filed until more than three years after the sale
under the decree. Moreover, the court held in that ease that
Longworth, who purchased at the sale, was a '•third person,"
88 American State Reports, Vol. 101. [California^
and entitled to protection as such. What was decided in Taylor
V. Boyd, 3 Ohio, 338, 17 Am. Dec. 603, is fairly expressed in the
syllabus as follows : "A party having title to land under a decree
in *^^ chancery conveys in good faith before citation on error
is served, a reversal of the decree does not devest tlie purchaser
of title." In Macklin v. Allenberg, 100 Mo. 337, 13 S. W. 350,
the validity of tlie title transferred by the plaintiff, who had pur-
chased at his own sale, was upheld on tlie ground that it "ought
not to be defeated by a reversal of the decree on a writ of error
sued out fully a year after the date of the deed." In McCor-
mick V. McClure, G Blackf. 4G7, 39 Am. Dec. 441, it appears
in the o])inion that the land was conveyed "after the decree and
before the commencement of the suit in error,"
Xone of the foregoing cases, however, or the principles gov-
erning them, have any application to a case where the defend-
ant has appealed from the judgment before the sheriff's deed
is executed to the plaintiff, or a sale made by him to a third per-
son. By such appeal the effect of the judgment as evidence of
the matters determined by it is suspended, even thougli its ex-
ecution is not stayed: Woodbury v. Bowman, 13 Cal, G34;
Murray v. Green, G4 Cal, 3G3, 28 Pac 118 : In re BIythe, 99 Cal.
472, 34 Pac. 108.
As against tlie authorities cited by the respondent, the ap-
pellant has cited Marks v. Cowles, Gl Ala. 299, in wliich tli'3
facts upon wliich the decision was rendered were in principle
identical with those pivsented in the present case. Tliero, as
here, the land was sold in satisfaction of a money judgment
and purchased by the plaintiff in tlie action. After it bad been
sold, and before the time for a conveyance, the defendant ap-
pealed from the judgment, but did not cause its execution to
be superseded. Thereafter the purchaser received a conveyance
of the land, and subsequently sold and convoyed it to a third
person, a stranger to the action. After this conveyance the judg-
ment under wbicli the property was sold was reversed. I'hfi
court held that the defendant was entitled to a restitution of tlic
land, upon tlie ground tbat the purebnser from the plaintilT was
chargeable with notice of the def<'asil)le character of the title
of bis grantor, saying: "Tlie judg-ment or decree must be shown
neeessarilv as an indispensable element of the title of the party
on tbe face of the title papers. And when it is shown, the de-
feasible character of ibe title appears, of wbicli the vendee is
bound to **** take notice The right of a ]iarly ag-
grieved by an erroneous judgment to a restoration to the condi-
April, 1904.] Di Nola v. Allison. 89
tion in which he was when it was rendered — the prohibition
against the use of such judgment by his adversary so as to derive
advantages he cannot restore, would be of little avail if through
the mechanism of an alienation to a party bound to know that
the right and prohibition exists, it could be defeated," and that
a different rule would authorize a party to transfer a better and
higher title than he acquired. We are of the opinion that the
principles here declared correctly state the rule governing the
decision to be rendered in the present case : See, also. Freeman
on Executions, 3d ed., sec. 347 ; Dembitz on Land Titles, 1229 ;
Dunnington v. Elston, 101 Ind. 373; Singly v. Warren, 18
Wash. 434, 63 Am. St. Rep. 896, 51 Pac. 1066.
The suggestion that this case was thus decided for the reason
that there is no statute in Alabama declaring the rights of the
parties or prescribing the procedure to be followed in case of
a reversal of the judgment does not impair its weight as an
authority. The rights of the defendant whose property has been
taken upon a judgment which is subsequently reversed do not
depend upon the provision of section 957 of the Code of Civil
Procedure. That section is not restrictive of his rights, but is
a remedial statute, and is to be liberally construed. The appel-
late court could have jurisdiction over only the parties before
it. and woiild have no authority to restore to the defendant prop-
erty over which the plaintiff had ceased to have any control. In
Reynolds v. Harris, 14 Cal. 667, 76 Am. Dec. 459, the proceed-
ings were instituted in the district court and the action of that
court was upheld, not by reason of the statute, but by virtue
of the inherent power in the court to make restitution of what
had been lost by reason of its erroneous judgment: See, also,
Dater v. Troy Turnpike Co., 2 Hill, 629; Gott v. Powell, 41
Mo. 416.
Section 1049 of the Code of Civil Procedure declares: "An
action is deemed to be pending from the time of its commence-
ment until its final determination upon appeal, or until the time
for appeal has passed, unless the judgment is sooner satisfied."
Any alienation of the property involved in an action while it
is pending is su])ject to the rights of the other *^* party, and
will bo subject to tlie judgment thereafter rendered in the case :
2 Pomeroy's Equity Jurisprudence, sec. 637 et scq. It docs
not appear from the record herein whether a notice of lis ])on-
dcns had been filed in the foreclosure suit, but it does ap]K\ir
that the plaintiff derived his title to the land througli tlie slier-
iff's deed to Golinskv, executed under the judgment in that
90 American State REroiiTS, Vol. 101. [California,
action. *'The grantee is cliarged with notice of the deeds and
documents from which lie deraigns his title. When he ])ur-
chases from the plaintifT in the execution he is presumed to know
the course of ])roeeedings and state of the record from which
the title of his grantor proceeded, and he is presumed to know,
too, that the right of the defendant is to take an appeal within
the statutory jicriod, and also the conseouences of the successful
prosecution of this right ; and he must be supposed to purchase
witli reference to these things": Eeynolds v. Harris, 14 Cal.
(;()T, 7(i Am. Dec. 459. See, also, 4 Kent's Commentaries, 170;
Story's Equity Jurisprudence, sec. 400; Wash])urn on Eeal
Property, sec. '^215; 2 Pomcroy's Equity Jurisprudence, sec. 62G
et seq. ; :\rarks v. Cowlos. Gl Ala. 2!)9; Speck v. Piggin, 40 Mo.
405; Smith v. Cottrall. 94 Ind. 379. The plaintiff was charge-
able with notice at the time he purchased the land of the char-
acter of Golinsky's title, and he was therefore put upon inquiry
and bound by all the facts which such incpiiry would liave dis-
closed. Upon sucli inquiry he would have learned that (iolinsky
had purchased the land at a sale under a judgment in an action
in which he was the plaintiff; tluit before the execution of
the slieriff's deed under tlie sale the defendants had ap])ealed
from the judgment, and that the appeal was still ])ending; tliat
thereby the validity of Golinsky's title to the property was dis-
puted l)y the defendants in that action, and would be defeated
bv a reversal of the judgment.
Xeither is the plaintiff herein in a position to invoke any pro-
tection under the provisions of section 957 of the Code of Ci\il
I'rocedure. By the tt'rms of that section, as ameniUnl in 1S74,
the court is autliorized to make restitution "so far as such rc-;;-
titution is consistent witli protection of a purchaser ....
at a sale ordered l)y the judgment, or had under process issued
upon tlie judgment.'' The ])laintin' licrein did not purchase
tlie pro])ertv "at a sale ordered by the judgment," **" and tlie
ju'inciples under whicli protection is given to strangers wlio pur-
chase at judicial sales liave no application. He did not i)ur-
cliase the pi-opcrty until after the sale had l)eon coin))l('t(Ml by
the execution of the sheritt's deed, and until after an ap])eal
had been lakiii from tlie judgment, and he had become cliargi^-
alile with notiee of the defects in (kolinsky's title, lie is tlici-e-
fore not in a position to invoke any ecpiitv in his favor, or ro
claim anv ])rotection from the restitution which Golinsky would
have been required to make.
April, 1904.] Di Nola v. Allisox, 91
As the effect of the reversal of the judgment was to set aside
the sale to the Golinskys, the appellant herein was thereby re-
stored to his original estate in the land. He did not requin^
any order of restitution from the court to enable him to asccit
his right to this estate, and it was incumbent upon the plain-
tiff herein, before he could have his title quieted, to establish
a title in himself superior to that of the appellant : See Black
V. Vermont Marble Co., 137 Cal. G83, 70 Pac. 776.
Whether the appellant is estopped from objecting to the valid-
ity of the sale to the respondent cannot be determined upon this
appeal. The record does not disclose any issue upon that propo-
sition before the superior court (Xewhall v. Hatch, 134 Cal.
269, m Pac. 266, 55 L. E. A. 673), and that court did not
make any finding to that effect. Whether one is estopped by
his conduct is a question of fact to be determined from the evi-
dence in reference thereto. We cannot assume from the evi-
dence before that court that it would have found that the ap-
pellant was so estopped, and it is not within the jurisdiction
of this court to make a finding of fact from the evidence be-
fore that court.
The objection that the statement on motion for a now trial
does not sufficiently specify the particulars in which the evi-
dence is insufficient to justify the decision is overruled. It
is stated therein, "The foregoing constitutes substantially all
the evidence given upon the trial": See Standard Quicksilver
Co. V. Habishaw, 132 Cal. 115, 64 Pac. 113.
We advise that the judgment and order denying a new trial
be reversed.
Gray, C, and Chipman, C, concurred.
lie Yov the reasons stated in the foregoing opinion the judg-
ment and order denying a new trial are reversed.
McFarland, J., Henshaw, J., Lorigan, J,
Hearing in Bank denied.
The Reversal of Judgments is the subject of a monographic note to
Cowdory V. London etc. Bank, 96 Am. St. Rep. 124-146. A reference
to page 137 of this note will show that when the plaintiff purchases
at a judicial sale, he does so at the risk of losing his title on the
reversal of the judgment. A different rule, however, prevails in some
jurisdictions: Blake v. Wolfe, 111 Ky. 840, 98 Am. St. Rep. 434. 61
S. W. 910. See, in this connection, Florence Cotton etc. Co. v.
Louisville Banking Co., 138 Ala. 588. 100 Am. St. Rep. 50, 36 South.
456.
92 American State Keports, Vol. 101. [California^
PEOPLE V. xVDAMS.
[143 Cal. 208, 76 Pac. 954.]
JURY — Separation in Criminal Trial. — If, after the final sub-
mission of a criminal case, the oflicer in charge of the jurors separates
them into three groups, and puts them in three different rooms on
three different floors of a hotel, for eight or nine hours, the defendant
ig entitled, without an affirmative showing of prejudice, to a new
trial, (p. 93.)
CRIMINAL TRIAIi— Province of Judge and Jury.— The re-
sponsibility of determining whether or not the defendant in a crim-
inal case should be found guilty rests entirely upon the jury, and
the judge should be careful in his instructions not to use language
■which might naturally be understood by the jury as intimating hi*
opinion that the defendant is guilty, or as an argument against him.
(p. 96.)
Henry C. Dibble and Dibble & Dibble, for the appellant.
U. S. Webb, attorney general, and J. C. Daly, deputy attorney
general, for the respondent.
2o« :\IeFAELAXD, J. Tlie defendant was convicted of mur-
der, the charge being that she murdered her infant child, a
boy a little over two years old; and the prosecution contends
that there was sufficient evidence to warrant tlie jury in lind-
ing that she willfully and feloniously caused the death of the
child by giving it carbolic acid. Defendant contends that the
''^^'^ cliild took the poi:^on accidentally, and without her kno ad-
edge. She appeals from the judgment and from an order deny-
ing licr 2nolion for a new trial.
The evidence on which the a])pelhint was convicted was
entirely circumstantial, and was undoubtedly conflicting, and
she contends that it was insulhcient to warrant the verdict;
but it is not nect'ssary for us to consider that point, because,
in our o])inion, a new trial must be granted on the ground of
a si'jtaration of the jury after the ca.-e bad been submitted ta
tlicin.
'i'lie facts as to such separation are these: The cause was
finally subniittod to tlie jury on July 20. 180!), and the coui't
directed the olliccr sworn to take charge of them to take them
to their meals during the day, and in the evening "to lock
thi'in up for the night together in one room," and lie "was
specially enjoined hy the court to kec}) them together during
tlie time that they should be deliberating upon their verdict,
and not to let them sej)arate.'' Instead of doing as the court
May, 1904.] People v. Adams. 93
■directed, the officer, when night came, divided the jurors into
three groups, and put them into three different rooms in a
hotel, each room being on a different floor, or story; and they
were thus separated and kept, not only in three different rooms,
but on three different stories of the hotel, for about eight or
nine hours. The officer testified that he locked the jurors in
tliese separate rooms.
In some of the cases where this subject was involved courts
had difficulty in determining whether the facts relied on con-
stituted a "separation" within the meaning of the law; and
it has been held that a mere momentary absence of one or two
jurors, through necessity or accident, did not amount to such
separation. But no such question arises in this case; there
was here clearly a separation — the jurors having been willfully
and intentionally kept apart in three separate groups for eiglit
hours. Instead of sitting and consulting together as one jury,
they were during this long time divided into three separate and
distinct deliberative bodies, the members of each being prevented
from conferring with those of either of the other two. Beyond
doubt this was such a separation as the law forbids.
Under our law there is a marked difference betAveen a sep-
aration during the progress of the trial and a separation after
^^^ final submission of the case. As to the former there is no
law requiring the jury to be kept together, although the court
may order them to be so kept ; and it is not necessary in the case
at bar to consider the significance of a violation of such
an order. But it is provided in the Penal Code (sees. 1128,
1135, 113G) that after the jury have finally retired for delib-
•eration they must be kept together; and one of the express
grounds for a new trial is '•'when the jury has separated with-
out leave of the court after retiring to deliberate upon their
verdict": Pen. Code, sec. 1181.
Whether such a gross violation of the law touching the sep-
aration of a jury as occurred in the case at bar should be
held to be absolutely, and without any further inquiry, a
cause for new trial, or whether the prosecution should be al-
lowed to show, if it could, that nothing occurred during such ex-
traordinary and prolonged separation prejudicial to defendant,
is a question whicli does not here occur, for there was here no
such showing. It is true that the oificer testified that lie "did
not permit any person to speak to any member of the said jury,"'
and did not permit any member of the jury "to speak to any
person on any subject connected with the trial herein or about
91 American State EEroRTS, Vol. 101. [California^
tlie c;u>=e at all"; but it is eviJont that this statement was of
no value, for. in the first place, he could not have been present
at the same lime at all the rooms on the three different stories,
if he had kept awake, and. in the second place, he himself went
to bed durinpr a part of the ni^dit. Certainly in this case — if
the law would countimance an attempt to show absence of ])re-
judice — nothing less than tlic allidavits of the jurors would be
suthciont to establish that fact.
And it is clear that the burden was not on appellant of
proving allirmativeiy that she was prejudiced by the said sepa-
ration of the jury. In this state the law on the subject was
first declared in People v. Backus, 5 Cal. 275. In that case
the court recited that in certain states it had been held that a
mere separation of the jury would not be ground for setting
aside a verdict without a showing of improper influence, and
that in other states it has been held that such separation did
invalidate a verdict without any showing of actual improper
influence. The court then says: "The latter rule we think
i.- the correct one. because it would be impossil)le in almost
liii every case for the prisoner to establish tbe fact of any cor-
rupt or improper communications between the jurors and
others. This doctrine is substantially sustained by the supreme
court of ^lassachusetts in the case of Commonwealth v.
Ifoby, 12 Pick. 519, and in a late case (decided in ^lississippi)
Orgon V. State, 2C) Miss. 78. in which the whole doctrine is re-
viewed. In the latter case the court says: 'If any sej)aration is
to be allowed witliout incurring the imputation of irregularity —
for what lenglh of tiine, and for what ])urpose may it lie, how
frequently may it be practiced, and to what distance mav it ex-
tend— Ijy what means are communications between tbe juror
and otlior j)crsons which may take place, and which must nec-
c^.-arily l»e secret, to be disclosed?" '" In People v. Brannigan,
21 Cal. ;5;!S, the court decided that ''where tbe jury in a criminal
action, after having retired to deliberate u])on their verdict,
.«'i>arat('(l witliout jaTniission of the court, the irregularitv is
sullicicnt ground for r-ctting aside a verdiet of guiltv rendered
ly them, unless it be shown allinnali vd v bv the jirosi'eulion
that the dcfrndant was not [irojudiced thereby."' In that case
t!.f cdurt. by Field, ('. J., said: •"The district attonu'y api^ears
'.o iiave considered it iiicundient ujion the jiidsoner to show af-
liriuat ively injury to himself rt-ulting from tbe separation, or
at least reasnn lo susfiect sueli injury. There are authorities
which support this view But there are authorities of
May, 1904.] People v. Adams. 95
equal weight the other way, and the latter, we think, are sup-
ported by better reasons." Many cases are cited in the opinion,
and, among others, State v. Prescott, 7 N. H. 287, where
the court say : ''The prisoner is in such case entitled, as a matter
of right, to require, in the first instance, a compliance with the
ordinary forms provided by the law to secure to. him a fair
and impartial trial; and if the guards provided for his security
are neglected, or disregarded, he is at least entitled to require,
at the hands of the government, satisfactory evidence that he
has not received detriment by reason of such neglect and is
not to be put to show, affirmatively, that such departure from
the customary mode of trial has been the probable cause of
his conviction." In People v. Hawley, 111 Cal. 78, 43 Pac. 404,
it was held that a separation of a jury after the final submission
in a criminal case vitiated the verdict, even though the defend-
ant had consented to the separation. The court there say :
212 <"x^i^e separation of the jury after they are sworn, even dur-
ing the trial, was never permitted at common law in cases of
felony, and in many states is not now permitted in capital
cases. Our statute permits such separation in all cases be-
fore the submission of the case, in the discretion of the court,
but expressly provides that after retiring to deliberate upon
their verdict, they must be kept together: Pen. Code, sec. 1128.
The court, therefore, had no authority, either under the statute
or at common law, to permit the separation ; nor could the con-
sent of the defendant or his counsel operate to empower or ex-
cuse the violation of an express provision of the statute." Many
cases are cited and quoted from in the opinion, and, among
otliers, Peiffer v. Commonwealth, 15 Pa. St. 468, 53 Am. Dec.
G05, where the eminent Chief Justice Gibson, delivering the
opinion of the court, said : "Even the forms and usages of the
law conduce to justice; but the common law, whicli forbids the
separation of a jury in a capital case before they have been dis-
charged of the prisoner, touches not matter of form, but matter
of sul)stance. It is not too much to say that if it were abolished
few influential culprits would be convicted, and that few friend-
less ones, pursued by powerful prosecutors, would escape convic-
tion." The authorities on the subject arc very fully collated
in Spelling's Xew Trial and Appellate Practice, commencing at
section 151, and also at section 59.
The foregoing cases established the law in this state as
above stated. The only case cited by respondent is Saltzman
v. Sunset Tel. etc. Co., 125 Cal. 501, 58 Pac. 169. That was a
96 American State Reports, Vol. 101. [California,
civil case, and the court in its opinion calls attention to the
fact that wliilo the separation of the jury after submission is
itself orround for a now trial in a criminal case, there is no such
provision as to a civil case. In a civil case the separation of
the jury can be considered on motion for a new trial only on
the general ground of "^misconduct." In the Saltzman case
the oflicer in charge had allowed one juror to communicate
for a few minutes to an outside party through a telephone
which was in the room where all tlie other jurors were, and
there was really no separation of the jury. The officer stood
beside the juror and heard all he said througli tlie telephone,
and it was shown by affidavits that the communication was to
^*^ the juror's family, and entirely about private matters; and
it was held that it sufficiently appeared that the misconduct
was without significance. But the law, even in civil cases,
was there announced as follows: "The rule in this state, I
take it to be. in civil cases, that a separation against the in-
struction of the court, with evidence that improper influence
might have been ])rought to bear upon the juror, puts the
burden ujwn the party seeking to sustain the verdict to nega-
tive the ])resumpti()n and show that no such attempt was made.
I think that was done in tliis case." The circumstances of
a separation in a particular case miglit possibly be such as to
tlu'iusolves ^bow that no ])rejudice to the defendant could have
resulted, and in such case a court perliaps would be warranted
in uj)holding the verdict notwithstanding the direct violation of
an express |)rovision of the code intended for the protection of
a (lel'endaiit ; but we need not pass upon that question, for it does
not arise in the case at Ijar. On account of the separation of the
jury sliown in tlie ])resent case the oixler denying a new trial
must l»e reversed.
There are no oilier points necessary to be determined. It
is contended that instruction Xo. 10, upon the subject of cir-
cumstantial evidence, is erroneous within the rule declared in
I'eoj,],. V. \(MviiesenOckockockhoir. 12'J C'al. 497, 58 Pac. 15(), T.-^
I'ae. Ill; but it is not necessary to definitely determine tiuit
question. If u]>on anotlier trial the court deems it ])roj)cr to
instruct at all ujion the subject of circumstantial evidence, it
can easily modify the instruction S(j as to avoid the criticisms of
appellant's counsel, it may be said, generally, that the responsi-
bility of determining whether or not a defendant in a criminal
case should bo found guilty rests entirely upon the jury, and that
the presiding judge, not having that nv-ponsibility, and being
May, 1904.] Wright v. Austin. 97
prohibited by our constitution from charging as to matters of
fact, should be careful, in instructing, not to use language
which might be naturally understood by the jury as intimat-
ing his opinion that the defendant was guilty, or as an argument
against him.
The judgment and order appealed from are reversed and the
cause remanded for a new trial.
Shaw, J., Angellotti, J., Van Dyke, J., Henshaw, J., and
Lorigan, J., concurred.
The Effect of the Separation of the Jury in criminal trials is dis-
cussed in the monographic notes to McKinney v. People, 43 Am. Dec.
75-87; State v. State, 60 Am. Kep. 73-75. Ordinarily, the separation
of jurors further than is necessarily required to enable them to per-
form their duties as such, and under the care of a sworn officer, cre-
ates a presumption of improper influence, but this presumption may
be rebutted by clear and convincing proof: Commonwealth v. Eisen-
hower, 181 Pa. St. 470, 59 Am. St. Eep. 670, 37 Atl. 521.
WEIGHT V. AUSTIN.
[143 Cal. 236, 76 Pac. 1023.]
HIGHWAY— Rights in Acquired by Public— By taking or ac-
cepting land for a highway, the public acquire only the right of
way, and the incidents necessary to enjoying and maintaining the
same, which incidents do not embrace the subterranean waters of
the road. (p. 99.)
HIGHWAY — Percolating Water, Injunction Against Using. —
The public authorities may be enjoined, at the suit of the owner of
the fee, from taking the subterranean waters from a highway to
sprinkle it. (p. 101.)
Butts & Weske, for the appellants.
C. H. Pond and R. L. Thompson, for the respondents.
^^' CTIIPMAX, C. The case is here on appeal from a judg-
ment on an agreed statement of facts. Plaintiffs are, and
have been for many years^, the owners of the premises described
in the complaint, situated in Santa Rosa road district, So-
noma county. Along the northerly side of said lands there
is a public highway which has been in use as such for more
^^^ than thirty years, and occupies a strip of land twenty-five
feet wide, and the center line of the road is the north bound-
ary line of plaintiff's land ; defendants are the board of super-
Am. St. Rep. Vol. 101—7
98 American State Reports, Vol. 101. [California,
visors of said county and the ex-officio road commissioner
of the said road district; on May 27, 1903, defendants, in
their official capacity, without the consent of plaintiffs, went
upon said strip of land, erected machinery for the purpose
of boring a well on said highway about four or five feet from
tlie southerly line thereof, and where said highway ran along
and over plaintiffs' land. This well was six inches in diameter,
and was bored to the depth of forty-four feet, and an iron
pipe or casing placed therein, and defendants erected over said
well a windmill and pump and water-tank. This well was
bored and the pump and tank were erected "for the purpose of
obtaining water from said well to sprinkle and keep in repair
said public road"; the plant was so erected as not to interfere
in any way with the free use and enjoyment by the public of said
higlnvay; "said highway was not out of repair at the point
where said well was bored, .... and said well was not bored
for the purpose of getting soil to repair said highway, but was
bored solely for the purpose of getting water to sprinkle said
highway and thereby to prevent the same from getting out of re-
pair and to render it more fit and convenient for public use."
The water "sought to be taken from said well is such as Hows or
percolates through the soil of said premises at a depth of from
twenty to forty-four feet from the surface of the ground.'' It
is further stipulated that the defendants "threaten to and will
operate said pump, windmill, and waterworks, and take and re-
move from said well large quantities of water, wbich Hows and
percolates tlirough the side of said premises into said well, and
use the same upon said highway, unless restrained by injunction
of this court."
There is no stipulation as to whether plaintiffs were making
any use of the percolating waters subterranean of their land,
or as to the damages alleged.
Plaintiffs appeal from the judgnnent given in defendants'
favor.
Section 2G31 of the Political Code roads: "By taking or ac-
cepting land for a highway, tbe public acquire only the ^""* right
of way, and the incidents necessary to enjoying and maintaining
the same, subject t-o the regulations in this and the Civil Code
provided."
This is but the f'lrnmlation of the general rule laid down
in tlie books and decided rasi's wlien treating of highways as
easements, which th^y are.
May, 1904.] Wright v. Austin. 99
Speaking of the rights retained by the adjacent owner,
Parker, C. J., in Tucker v. Tower, 9 Pick. 109, 19 Am. Dec. 350,
said : ''It is too clear to require any discussion that the propri-
etor of land over which a public highway has been laid retains
his right in the soil for all purposes which are consistent with
the full enjoyment of the easement acquired by the public."
The question here raised has, in one form or another, been be-
fore the courts frequently, and it will be found that the decisions
invariably turn upon what may reasonably be said to be "in-
cident" to either the construction, repair, or maintenance of
the road constructed over the right of way. The decided cases
(and they are numerous) are illustrative of the principle de-
clared in the code, but in none of the cases cited, and in none
we have been able to find, has it been held that the easement
or the dominant tenement draws to it the right, as an incident,
to bore or dig wells along the right of way for the purpose above
stated.
It was said in Burris v. People's Ditch Co., 104 Cal. 248, 37
Pac. 922 : "It is well settled that the owner of an easement can-
not change its character, or materially increase the burden upon
the servient estate, or injuriously affect the riglits of other per-
sons, but within the limits named he may make repairs, im-
provements, or changes that do not affect its substance."
In Xorth Fork Water Co. v. Edwards, 121 Cal. GG2, 51 Pac.
69, it was said : "Every easement includes what are termed 'sec-
ondary easements'; that is, the right to do such things as are
necessary for the full enjoyment of the easement itself, but
this right is limited, and must be exercised in such reasonable
manner as not to injurioiisly increase the burden upon the
servient tenement. The burden of the dominant tenement
cannot be enlarged to the manifest injury of the servient estate
by any alteration in the mode of enjoying the former. The
OAvner cannot commit a trespass upon tlie servient tenement
beyond the limits fixed by the grant or use."
^"*" If we are to hold that the county may dig or bore wells,
and to any depth necessary to obtain water at convenient dis-
tances along the highways, for the purposes named, it must
]}e because it has the right as an incident to the principal
ol)ject, which is to establish a higinvay, and as necessary to
tliat object. And the right Avould not depend on tlie fact
tliat the owner of the servient tenement was not at tlie time
\ising the water or contemplating it> nso. Should lie find it
necessary to use the percolating waters in hi> land adjacent
100 Ameeican State Reports, Vol. 101. [California,
to the highway, and should it be found that the wells in the
highway diminished his flow of water materially, the county
would still have the right to a just apportionment of the water
if respondent's contention be sound, and if the percolating
waters pass as incident to the easement. In other words, it
must be held that the percolating waters under the surface
of a highway are acquired as incident to the easement, and
are a part of tlie grant or use, at least to the extent needed
to sprinkle the highway, and that to that extent these waters
do not belong to the owner of the servient tenement. A very
small mileage of the public roads of the country are sprinkled
with water as a means of preservation. Doubtless, such use of
water on some roads is desirable in maintaining them and adds
to their convenient use, but it can hardly be said generally
that the sprinkling of roads is necessary to their maintenance.
In Town of SufBeld v. Hathaway, 44 Conn. 521, 2G Tac. 483,
it was held that the selectmen of a town have no right as
against an owner of land on the highway to divert the water
from a spring on such owner's side of the highway to a public
wnj;ering trough on the other side. Jackson v. Hathaway, 15
Johns. 447, 8 Am. Dec. 2Go, was cited approvingly where it
was said: ''When the sovereign imposes a public right of way
upon the land of an individual, the title of the former owner is
not extinguished, but is so qualified that it can only be enjoyed
suljject to that casement. The former proprietor still retains
the exclusive right in all mines, quarries, springs of water,
timber, and earth, for every purpose not incompatible with the
public riglit of way." In the Sullield case. Woodruff v. Xeal,
28 Conn. 1G7, was also cited, where it was said to be well estab-
lislied, "In conformity with the principles of the common
^^•^ law, that a highway is simply an easement or servitude, con-
ferring u])on the public only the right of passage over the
land on which it is laid out, and as an incident of such right
that of using the soil or material upon it in a reasonable man-
ner for the purpose of making and repairing it Sul)ject
to this right of the public, he may take trees growing upon
the land, occuj)y mines, sink watercourses under it, and gen-
erally has a right to every use and profit which can be derived
from it consistent with the easement, and when disseised (as
he may be) can maintain ejectment, and recover possession
subject to the easement, and can also maintain tresjjass for
any act done to the land not ncct^ssary for the enjoyment of
the casement, which would be an actionable injury if the
May, 1904.] Weight v. Austin. 101
land was not covered by a highway." The right of the owner
of the fee to whatever may he said to belong to the owner of
the land necessarily draws to it the right of appropriation
and use at all times, subject only to such rights as go with
the easement. At least as between the parties to this action,
the percolating waters of the land are property in the same
sense as are mines, quarries, springs, and the like^ and plain-
tiffs' right thereto is unaffected by the easement, unless it
be true that defendants may, as of right, bore down to and
draw the water from its subterranean sources for the purposes
named. But we think that defendants have not that right,
and it therefore becomes immaterial whether plaintiffs are
now using the water or that they are not now specially dam-
aged by defendants' use. In our opinion, the subterranean
water underlying a highway cannot reasonably be said to be
one of the "incidents necessary to enjoying and maintaining
the same" any more than can the waters of a spring be said
to be an incident to the easement. The county is not without
authority to provide means for making the roadway more
convenient by sprinkling, or to thus provide for its enjoyment
and maintenance. Subdivision 10 of section 2G43 of the Po-
litical Code provides: "For the purpose of sprinkling the
roads in any part of the county with oil or water, the board
of supervisors may erect and maintain waterworks and oil-
tanks and resen^oirs, and for such purposes may purchase or
lease real or personal property," the cost to "be charged
to the general county fund, the general road fund, or the dis-
trict fund of the district or districts benefited,"
^"*^ This statute indicates that the legislature deemed it neces-
<^ sary to provide some further authority for sprinkling the
liighways than was given in section 2G31 of the Political Code.
The statute referred to at least would seem to corroborate the
view we have taken of that section.
The court said in Robert v. Sadler, 10-1 N. Y. 229, 58 Am.
Eep. 498, and note: "The courts Imve held that where, to reach
and prepare the surface of the road in accordance with its
grade line, superincumbent material is necessarily removed, it
may be used upon other parts of the road, and upon the prem-
ises of other land owners; and that, where there has been no
negligence in construction, consequential injuries necessarily
resulting cannot be recovered. It was said in Pumpelly v. Green
Bay Co., 13 Wall. 181, 20 L. ed. 557, that this class of decisions
'have gone to the uttermost limit of sound judicial construction,'
^
103 American State Reports, Vol. 101. [California,
and 'in some cases beyond it.' The observation was just. To
take merely an easement in land, leaving the fee in the owner,
and then, by advancing stages of judicial endurance sap the
value and utility of the fee by adding its benefits to the ease-
ments, is scarcely consistent with the policy which is at the
same time sedulously protecting the right of abutters having no
fee in the street whatever, to their easements of light and air
and access."
In the case cited pits were dug for gravel with which to
cover the roadway, and for this reason defendants claim that
the case is not in point. But would it have been less so if
the gravel had been obtained by sinking shafts and mining
for it in such manner as not to interfere with the surface of
the roadway? The question always recurs, What incidents
pass with the easement, and what rights go as incidents?
The diligence of counsel (and the briefs on both sides cite
cases copiously), aided by our own research, has failed to
disclose a case where it has been held that the easement brings
with it the right to penetrate the earth along the highway
to an indefinite extent for materials with which to construct
and maintain it.
Upon the facts as stipulated we think the judgment as en-
tered should be reversed, and judgment should be for the
plaintiff as prayed for in the complaint, restraining defend-
ants "from taking, appropriating, or removing the percolat-
ing 2'*^ waters from plaintiffs' said lands," described in the com-
plaint. It is accordingly so advised.
Cooper, C, and Harrison, C, concurred.
For the reasons given in the foregoing opinion, tlie judg-
ment is reversed, with directions to enter judgment in favor
of plaintiffs as prayed for in the complaint, restraining de-
fendants from taking, appropriating, or removing the perco-
lating waters from plaintiffs' said lands, described in the com-
plaint. ^leFarland, J., Lorigan, J., Henshaw, J.
RIGHTS, OBLIGATIONS, AND REMEDIES OF PERSONS OVER
WHOSE LAND A PUBLIC HIGHWAY RUNS.*
I. Title and Fee to Soil.
a. Ownership, 103.
b. Transfer, Merger and Ouster, 105.
•rkferencb to monographic note.
Kights and obligations of parties to private ways; yj Am. 8t. Rep. 31S-33a
May, 1904.] Wright v. Austin. 103
n. Easement or Right of Way.
a. In General, 105.
b. Width and Alteration of Traveled Way, 105.
III. Rights and Privileges Peculiar to Owner.
a. As Distinguished from Other Persons, 106.
b. Use of Road for Private Purposes, 107.
c. Maintenance of Fences and Gates, 108.
rv. Encroachments, Obstructions and Nuisances.
a. Encroachments and Obstructions, 109.
b. Destruction of Lateral Support, 111.
c. Nuisances — Offensive Conduct, 111.
d. Deviation from Road to Avoid Obstruction, 111.
V. Soil and Minerals, 111.
VI. Trees, Grass and Herbage.
a. Grass and Herbage, 112.
b. Shrubs and Trees, 112.
"VII. Waters and Drainage,
a. Use of Water in Highway, 114.
b. Watercourses, Streams and Raceways, 114.
c. Ditches and Drainage, 115.
VIII. Repair of Highways.
a. Use of Soil, Gravel and Rock, 115.
b. Use of Timber, 116.
IX. Vacation or Abandonment of Highway, 117.
X. Remedies Available to Land Owner, 117.
I. Title and Fee to Soil.
a. Ownership. — When a highway is laid out over private prop-
erty, the owner is not thereby deprived of his title to the land
covered by the road. The public acquires only an easement of pas-
sage, with the rights and incidents thereto, while the owner retains
the fee to the soil for all purposes not incompatible with the en-
joyment of the easement secured by the public: Brown v. Freeman,
1 Eoot (Conn.), 118; Postal Tel. Cable Co. v. Eaton, 170 111. 513, 62
Am. St. Eep. 300, 49 N. E. 365, 39 L. R. A. 722; Hagaman v. Moore,
84 Ind. 496; Dubuque v. Maloney, 9 Iowa, 450, 74 Am. Dec. 358;
Commissioners of Shawnee County v. Beckwith, 10 Kan. 603; Seamen
v. Huffaker, 21 Kan. 254; Small v. Pennell, 31 Me. 267; Town of
Galen v. Plank Eoad Co., 27 Barb. 543; Williams v. New York Cent.
E. E. Co., 16 N. Y. 97, 69 Am. Dec. 651; Higgins v. Eeynolds, 31
N, Y. 151; State v. Hewcll, 90 N. C. 705; Phillips v. Dunkirk etc.
E. E. Co., 78 Pa. St. 177; Charleston Eice Milling Co. v. Bennett, 18
S. C. 254; Chicago etc. .Ey. Co. v. Milwaukee etc. Ey. Co., 95 Wis.
561, 60 Am. St. Eep. 136, 70 N. W. 678, 37 L. E. A. 856; United States
v. Harris, 1 Sum. 21, Fed. Cas. No. 15,315.
"By the location of a way over the land of any person, the pub-
lic have acquired an easement which the owner of the land cannot
lawfully extinguish or unreasonably interrupt. But the soil and
freehold remain in the owner, although encumbered with a way. And
every use to which the land may be applied, and all the profits which
104 American State Reports, Vol. 101. [California^
may be derived from it, consistently with the continuance of the
easement, the owner can lawfully claim": Perley v. Chandler, &
Mass. 453, 4 Am. Dec. 159. "The owner parts with the use only,
for if the road is vacated by the public, he resumes the exclusive
possession of the ground; and while it is used as a highway, he is
entitled to the timber and grass which may grow upon the surface,
and to all minerals which may be found below it": Barclay v.
Howell, 6 Pet. 498, 512. "He has all above and all under the ground,
except the right of way in the public": Overman v. May, 35 Iowa,
89, 97. "The right of the owner may grow less and less as the
public needs increase. But at all times he retains all that is not
needed for public uses, subject, however, to municipal or police reg-
ulations": Burr v. Stevens, 90 Me. 500, 38 Atl. 547; Allen v. Boston,
159 Mass. 324, 38 Am. St. Kep. 423, 34 N. E. 519.
The legislature is competent to provide for taking the fee to land
appropriated, and devesting the owner of all proprietary interest
therein: Board of Supervisors v. Sea View Ky. Co., 23 Hun, 180;
and, of course, the fee to the soil in a public highway is not neces-
sarily and under all circumstances in the adjoining owner: Taylor
V. Danbury Public Hall Co., 35 Conn. 430; Ailing v. Burlock, 46
Conn. 504; Kenthrop v. Bourg, 4 Mart. (La.) 136; Mott v. Clayton,
41 N. Y. Supp. 87, 9 App. Div. 181; Mitchell v. Einstein, 86 N. Y.
Supp. 759, 42 Misc. Eep. 358. But, prima facie, the adjacent pro-
prietors each own to the middle of the highway; or if the same per-
son owns on both sides, he owns the whole road, subject to the pub-
lic easement of passage in either case: Town of Chatham, 11 Conn.
60; Rich v. Minneapolis, 37 Minn. 423, 5 Am. St. Rep. 861, 35 N. W,
2; Copp V. Neal, 7 N. H. 275; Myer v. Bell Tel. Co., 82 N. Y. Supp.
83, 83 App. Div. 623; Dell Rapids Mercantile Co. v. Dell Rapids, 11
S. Dak. 116, 74 Am. St. Rep. 783, 75 N. W. 898; Western Union Tel.
Co. v. Williams, 86 Va. 696, 19 Am. St. Rep. 908, 11 S. E. 106, 8 L.
E. A. 429. A grant of lands bounded by a highway is presumed to
carry with it the fee to the center of the road, for ordinarily there
is no object or purpose to be subserved by the owner retaining the
title to the highway when he has parted with the ownership of the
adjoining land: Hunt v. Rich, 38 Me. 195; McKcnzie v. Gleason, 184
Mass. 452, 100 Am. St. Rep. 566, 63 N. E. 1076; Winter v. Peterson,
24 N. J. L. 524, 61 Am. Dec. 678. This presumption does not pre-
vail, however, when the sovereign or the public authorities are vcstci]
with the foe of the highway: Paige v. Sehcncetady Ry. Co., 77 N.
Y. Supp. S>9, 3S ;Misc. Rep. 384. And it is rebutted by the produc-
tion of a deed from whicli the owner derives his title, granting the
land to the side of the road only: Smith v. Slocomb, 77 Mass. (11
Gray) 280. See, also, McKonzie v. Gleason, 184 Mass. 452, 100 Am.
St. Rep. 566, 69 N. E. 1070; Jackson v. Hathaway, 15 Johns. 447,
8 Am. Dec. 263.
May, 1904.] Wright v. Austin. 105
b. Transfer, Merger and Ouster. — A covenant of seisin is not
broken, it seems, by an encumbrance such as a highway: Vaughn v.
Stuzaker, 16 Ind. 338. By the transfer of a turnpike road from the
public to a private corporation, the title of the soil is not changed,
but remains in the adjoining owners: Douglas v. Turnpike Eoad
Co., 22 Md. 219, 85 Am. Dec. 647.
Upon the acquisition by the commonwealth of land over which a
highway has been located, the easement of the highway is not merged
in the estate which the commonwealth acquires in the land: People
V. County of Marin, 103 Cal. 223, 37 Pac. 203, 26 L. E. A. 659.
The owner of the fee to land on which there is a public highway
may be barred of his title thereto by the adverse possession of an-
other for the statutory period. And the private rights of an abut-
ting owner in the highway may be lost through adverse possession:
See the monographic note to Northern Pac. Ey. Co. v. Ely, 87 Am.
St. Eep. 778. The public easement, however, cannot be extinguished
by operation of the statute of limitations: See the monographic note
to Schneider v. Hutchinson, 76 Am. St. Eep. 492-494.
II. Easement or Eiglit of Way.
a. In General. — When a highway is laid out over private prop-
erty, the public acquires an easement of passage thereon; but or-
dinarily it acquires no greater interest therein than a right of way,
with the powers and privileges incident to that right. Subject to
this easement, as has already been seen, the interest of the owner
of the fee remains unimpaired: Town of Palatine v. Kreuger, 121
111. 72, 12 N. E. 75; Stinson v. Gardiner, 42 Me. 248, 66 Am, Dec.
281; Ellsworth v. Lord, 40 Minn, 337, 42 N. W. 389; Williams v.
Katural Bridge Plank Eoad, 21 Mo. 580; Trustees of Presbyterian
See. v. Auburn etc, E. E. Co., 3 Hill, 567; Lewis v. Jones, 1 Pa, St.
336, 44 Am. Dec. 138.
b. Width and Alteration of Traveled Way. — Since the fee to the
soil of a highway is in the adjoining owner, it follows that a private
individual may be held liable as a trespasser by the owner of land
over which a highway runs, for acts causing injury to the latter in
widening or repairing the highway outside its traveled portion, al-
though the public authorities might have lawfully done the same
acts: Hollenbeck v. Eowley, 8 Allen, 473. So, one adjoining owner
cannot build a driveway upon the land of another, within the limits
of the highway but outside the wrought portion, for his private con-
venience in passing from his land to the highway: Burr v. Stevens,
90 Me. 500, 38 Atl. 547. Said the court: "The defendant had no
right to build a driveway upon this land of the plaintiff, although
vrithin the limits of the highway, for his private use and conve-
nience. In the use of this driveway he was not a traveler upon the
public highway, but it was built and used by him for his private
106 American State Reports, Vol. 101. [California,
convenience because of the difficulty of passing directly from bis
land to the highway."
The public, in their use of a road, are not confined to the width
of the actual beaten path, even where the easement has been ac-
quired by user: Whitesides v. Green, 13 Utah, 341, 57 Am. St. Eep.
740, 44 Pac. 1032. Yet if a traveler, without necessity, drives out-
side the uniform beaten path of a highway for the express purpose
of injuring the grass along the roadside, he is answerable therefor
to the abutting owner: People v. Foss, 80 Mich. 559, 20 Am. St.
Eep. 532, 45 N. W. 480,
A land owner, who, by permission of a turnpike company, alters
the grade of a public highway on his land, assumes the duty and
obligation of such company to make the altered road suitable and
safe for public travel: Horstick v. Dunkle, 145 Pa. St. 220, 27 Am.
St. Rep. C85, 23 Atl. 378.
ni. Rights and Privileges Peculiar to Ovmer.
a. As Distinguished from Other Persons. — Undoubtedly the owner
of property abutting on a public highway, whether or not he owns
the fee to the middle of the road, has rights therein not held in
common with the general public for purposes of travel and use:
Town of Longniont v. Parker, 14 Colo. 386, 20 Am. St. Eep. 277,
23 Pac. 443; Bradley v. Pharr, 45 La. Ann. 426, 12 South. 618. "The
interest in the street which is peculiar and personal to the abutting
lot owner, and which is distinct and different from that of the gen-
eral public, is the right to have free access over it to his lot and
building, substantially in the manner he would have enjoyed tlic
right in case there had been no interference with the street": In-
diana etc. Ey. Co. v. Eberle, 110 Ind. 542, 59 Am. Eep. 225, 11 K E.
467; Pittsburgh etc. Ey. Co. v. Noftsger, 148 Ind. 101, 47 N. E.
;i32; "Obstructions, Encroachments, and Nuisances," post. And
the law accords the owner of the fee broader rights than it does
merely an abutting owner. "The ownership of the fee of land in
a street has a substantial value in the abutting property holder, in
the degree of control it gives to him over the uses to which the
street may be put. It vests him with the right to defend against
and to enjoin a use of or an encroachment upon the street, under
legislative or municipal authority, for purposes inconsistent with
those uses to which streets should be or have been ordinarily sub-
jected, unless just com])ensation is provided to be made. 11 is owner-
ship of tlie land in the street is subject only to the public easement
therein as a hisiluvay. In the ;it)sence of such a provi^tion for com-
pensation, the takiiiir of the street for some new or additional and
inconsistent use woiilil lie illegal. P>ut if the abutting propertv
owner does not own the f<'o in the Land of his street, ho has no such
right to compensation, and is remedilos-! against a taking of the
street und('r legislative or uuinici[ial sanvtion for other uses, except
May, 1904.] Wiught v. Austin. 107
auch other uses be unreasonable, and in their nature so improper as
to obstruct a free passage upon the street, or to amount to a nuis-
ance, or to deprive him of the enjoyment of easements of light, air
and access. As to any such improper or unreasonable use of a street,
the abutting property owner would undoubtedly have the right to
come into a court of equity and to claim its intervention to pro-
tect his general rights": Buffalo v. Pratt, 131 N. Y. 293, 27 Am. St.
Eep. 592, 30 N. E. 233, 15 L. K. A. 413.
A traveler along a public highway may not have a right to turn
aside and remove a fence standing within its lines which does not
obstruct the general use of it nor interfere with him; while adjoin-
ing owner may have such a right, for he has a right to reasonable
access from his premises to the traveled part of the road: Hubbard
V. Deming, 21 Conn. 356.
b. Use of Eoad for Private Purposes. — The owner of the soil
over which a public way passes may make a reasonable use of the
land above and below the surface, so long as he does not incommode
the public or impair the usefulness of the way: Farnsworth v. Eock-
land, 83 Me. 508, 22 Atl. 394; Clark v. Lake St. Clair etc. Ice Co., 24
Mich. 508. He may use a reasonable portion of the highway, tempor-
arily, for the deposit of lumber, building materials, etc.: Chamberlain
V, Enfield, 43 N. H. 356; Mallory v. Griffey, 85 Pa. St. 275; North
Manheim Township v. Arnold, 119 Pa. St. 380, 4 Am. St. Kep. 650,
13 Atl. 444; Loberg v. Amherst, 87 Wis. 634, 41 Am. St. Kep. 69, 58
N. W. 1048. But see Knapp etc. Mfg. Co. v. New York etc. E. E.
Co., 76 Conn. 311, 100 Am. St. Eep. 994, 56 Atl. 512.
The owner of a lumber-yard, however, cannot permanently use a
road to pile lumber in: Busse v. Eogers (Wis.), 98 N. W. 219. An
abutting owner has a right to a passway beneath the surface of the
highway: Pemberton v. Booly, 43 Mo. App. 176. And he may ex-
cavate under the street or highway, and use the space, when he does
not thereby interfere with the public convenience: McCarthy v.
Syracuse, 46 N. Y. 194; Papworth v. Milwaukee, 64 Wis. 3»9, 25 N.
W. 431. It seems, too, that an abutting owner may lawfully place a
stepping-stone in the street: Teager v. Flemingsburg, 109 Ky. 746, 95
Am. St. Eep. 400, 60 S. W. 718, 53 L. E. A. 791; Eobert v. Powell, 168
N. Y. 411, 85 Am. St. Eep. 673, 61 N. E. 699, 55 L. E. A. 775; or
construct an area in front of his premises: Dell Eapids Mercantile
Co. V. Dell Eapids, 11 S. Dak. IIG^ 74 Am. St. Eep. 783, 75 N. W.
898.
But the prim^ary object of public streets and highways is to furnish
a passageway for travelers; and while they may be put to other
uses, they must be enjoyed in subordination to tliis primary object:
People V. Squire, 107 N. Y. 593, 1 Am. St. Eep. 893, 14 N. E. 820.
The owner of the soil cannot appropriate a highway for private pur-
poses to the detriment of the public right of passage: Bohne v. Blaiik-
enship, 25 Ky. Law Eep. 1645, 77 S. W. 919. He cannot impede or
108 American State Keports, Vol. 101. [California,
obstruct a road terminating at a navigable river, and intended as a
means of public communication between the river and the country
adjoining, by erecting a wharf, and filling it up so as to raise the
terminus of the road from the edge of the water to the top of the
wharf: Balliet v. Commonwealth, 17 Pa. St. 509, 55 Am. Dec. 581.
In respect to frightening horses, the general rule is, that a property
owner, who has a lawful right to expose an object on or along a
public highway, within view of passing horses, for a temporary pur-
pose, is bound only to take care that it shall not be calculated to
frighten ordinarily gentle and well-trained horses: Piollet v. Sum-
mers, 106 Pa. St. 95, 51 Am. Kep. 490. The object in question
in this case was a small barrel, mounted on wheels, and used in
whitewashing the road fence. In Lynn v. Hooperj 93 Me. 46, 44
Atl. 127, 47 L. E. A. 752, it was lield unlawful for a land owner to
place a hay cap over a bunch of hay within the limits of the high-
way, giving the appearance of a small white teut.
c. Maintenance of Fences and Gates. — Land owners cannot, as a
rule, erect and maintain gates across a highway for the purpose of
protecting their property: Turpin v. Dennis, 139 111. 274, 28 N. E.
1065; Ileuby v. Kipley Township, 10 Ind. 45. The public, however,
may authorize this to be done: Ilunsickcr v. Briscoe, 12 La. Ann. 169.
And when a board of supervisors, in pursuance of a statute, authorize
a person to place gates across a road which runs through his laud,
this nuthorization, while it should not be withdrawTi capriciously to
the injury of the one who has acted under the license, may, never-
theless, be revoked: Teague v. Board of Supervisors, 56 Miss. 29.
The owner of land through which a pent road runs may erect gates
and bars for the protection of his crops, so long as they do not
interfere with the reasonable use of the way as a pent road: Wolcott
V. Whitcomb, 40 \t. 40; Carpenter v. Cook, 67 Vt. 102, 30 Atl. 998.
A person owning land on both sides of a highway crossed by a
creek, spanned by a bridge, has no right, because the steam cannot be
crossed, except on the bridge, to build a fence along the creek's
bank to tlio bridge: Cornlison v. State, 40 Tex. Cr. App. 159, 49 S.
W. o'?!. Statutory authority for so doing, however, exists in some
jurisdictions: Town of Sadorig v. Black, 65 111. App. 72. Said tlio
supreme court of Illinois, in passing upon this question, under tlio
■statute of that state: "Before the present bridge was built, there
was an old hriil;,'e, by the side of wliich was a convenient ford, much
iisoil by the public. But the present Ijridge occupies the site of that
furd; and the now one beside, and tlie one claimed to be obstructed,
til"' dei'idfd preponderance of evidence shows, is inconvenient, the
banks 1 cing steep and dinieult to ascend or descend, and that it was
uiily occaiiidnally used before the building of the fences, by persons
liesiring to water their te.anis, or wet the wheels of their wagons in
the stream, for the purjiose of tightening the tires; and, when the
stream was dry, Ijy jiersons to water their teams at a spring
May, 1904.] Wright v. Austin". 109
on appellee's land near by. The right of way existing in the public
is a right of way of passage along the highway, and not a right to
get water, either in streams or springs, on the soil of the land
owners. The water is no part of the highway, and its use is not an
incident to the use of the highway": Old Town v. Dooley, 81 111. 255.
IV. Encroachments, Obstructions and Nuisances.
a. Encroaclunents and Obstructions. — An abutter on a public way
cannot maintain an action for an obstruction to the way in that part
of it which is not opposite his land, for the reason that in such a
case his damage is not different in kind from that suffered by the
public: Eobinson v. Brown, 182 Mass. 266, 65 N. E, 377. See, in this
connection, Cabbell v. Williams, 127 Ala. 320, 28 South. 405; Coburn v.
Ames, 52 Cal. 385, 28 Am. Kep. 634; Jacksonville etc. Ey. Co. v.
Thompson, 34 Fla. 346, 16 South. 282, 26 L. E. A. 410; Pittsburg etc.
Ey. Co. V. Noftsger, 148 Ind. 101, 47 N. E. 332; Miller v. Schenck,
78 Iowa, 372, 43 N. W. 225; Dyche v. Weichselbaum, 9 Kan. App. 360,
58 Pac. 126; Bembe v. Anne Arundel County, 94 Md. 521, 51 Atl. 179,
57 L, E. A. 279; Currier v. Davis, 68 N. H. 596, 41 Atl. 239; Hill v.
Hoffman (Tenn. Ch. App.), 58 S. W. 929; Galveston etc. Ey. Co. v.
Baudat, 21 Tex. Civ. App. 236, 51 S. W. 541; Smith v. Mitchell, 21
Wash. 536, 75 Am. St. Eep. 858, 58 Pac. 667; Baier v. Schermerhorn,
96 Wis. 372, 71 N. W. 600. The right of an abutting owner extends
to having the road clear of obstructions on the ground to which he
owns the fee; but it has been held that where his title extends only
to the middle of the highway he cannot maintain an action for an
obstruction on the opposite side of the road, the only effect of which
is to render access to his property more difficult and inconvenient,
and to force travel nearer his lot: Indiana etc. Ey. Co. v. Eberle, 110
Ind. 542, 59 Am. Eep. 225, 11 N. E. 467. Still, when an obstruction
in a highway materially interferes with the means of access to his
property, the general rule is that he may maintain an action in
respect thereto, whether or not the obstruction is on the part of
the road laid upon his land: Martin v. Marks, 154 Ind. 549, 57 N. E.
249. Said the court in this case: "The owners of real estate abutting
upon a highway have a peculiar and distinct interest in the highway
in front of their real estate; this interest includes the right to have
the highway kept open and free from obstructions which prevent or
materially interfere with the means of ingress to and egress from
said real estate."
It is a violation of the rights of the owner of the soil to store mer-
chandise in a highway (Coburn v. Ames, 52 Cal. 385, 28 Am. Eep.
634); or to deposit fence rails therein (Lewis v. Jones, 1 Pa. St. 330,
44 Am. Dec. 13S); or to lay gas-pipes without obtaining the consent
or compensating the owner (Kincaid v. Indianapolis Gas Co., 124 InJ.
577, 19 Am. St. Eep. 113, 24 N. E. 1066, 8 L. E. A. 602; Huffman v.
State, 21 Ind. App. 449, 69 Am. St. Eep. 368, 52 N. E. 713); or to
110 American State Keports, Vol. 101. [California,
erect telephone or telegraph poles (Postal Tel. Cable Co. v. Eaton, 170
111. 513, 62 Am. St. Rep. 390, 49 N. E. 365, 39 L. E, A. 722; Donovan.
V. Allert, 11 N. Dak. 289, 95 Am. St. Rep. 720, 91 N. W. 441, 58 L.
R. A. 775; note to Chesapeake etc, Tel. Co. v. Mackenzie, 28 Am. St.
Rep. 229; Myers v. Bell Telephone Co., 82 N. Y. Supp. 83, 83 App..
Div. 623); or to construct an elevated railway, though no part of
the structure is in front of the oAvner's premises, if the inclined plane
begins there: Eldert v. Long Island Elec. Ry. Co., 51 N. Y. Supp. 186,
28 App. Div. 451, affirmed in 165 N. Y. 651, 59 N. E. 1122. See, also,.
Do Geofroy v. Merchants' Bridge Ter. Ry. Co., 179 Mo. 698, post, p.
524, 79 S. W, 386, 64 L. R. A. 959. The owner of land taken for a
public street holds it subject to the right of appropriation of the
space above and below the surface for the purp>ose of public travel
without compensation: Sears v. Crocker, 184 Mass. 586, 100 Am. St.
Rep. 577, 69 N. E. 329. And it is generally regarded that the opera-
tion of street railways does not impose an additional servitude upon
the street for which the owner of the fee is entitled to compensation
or an injunction against the construction of the road: Baker v.
Selma etc. Ry. Co., 135 Ala. 552, 92 Am. St. Rep. 42, 33 South. 685;
Doane v. Lake St. etc. Ry. Co., 165 111. 510, 56 Am. St. Rep. 265, 46
X. E. 520, 36 L. R. A. 97; San Antonio etc. Ry. Co. v. Limbcrger, 88
Tex. 79, 53 Am. St. Rep. 730, 30 S. W. 533. And the same is true as
to the construction of a subway for public travel below the surface
of a street: Sears v. Crocker, 184 Mass. 586, 100 Am. St. Rep. 577, 69
N. E. 327. A contrary view has been taken, however, as to the
appropriation of a street to the construction and operation of an
ordinary commercial railroad: Adams v. Chicago etc. R. R. Co., oJ)
Miun. 286, 12 Am. St. Rep. 644, 39 N. W. 629, 1 L. R. A. 493; Chicago
etc. Ry. Co. v. Milwaukee etc. Ry. Co., 95 Wis. 561, 60 Am. St. Rep.
136, 70 N. W. 678, 37 L. R. A. 856. See Sherlock v. Kansas City Belt
Ry. Co., 142 Mo. 172, 64 Am. St. Rep. 551, 43 S. W. 629. The use of
a public street, by putting up a fence which shuts off all access to
abutting property, and occupying the street with building apparatus
and a double track railway two feet above the sidewalk, is not a mere
source of consequential damages, but a direct taking of the land of
an abutting owner for a purpose to which it has never been dedicated
or appropriated: Kuapp etc. Mfg. Co. v. New York etc. R. R. Co.,
76 Conn. 311, 100 Am. St. Rep. 994, 56 Atl. 512.
Where the land is owned by an adjoining proprietor, the public
cannot use a highway to erect tlierein a public building, such as a
watrhhouse: Winchester v. Capron, 63 N. H. 605, 56 Am. Rep. 551,
4 Atl. 7!»5. But the authorities may i)lace a reservoir or cistern in
a hij;hway for the purj>ose of retaining water to sprinkle the ro;i,]:
West v. Bancroft, 32 Vt. 367.
The encroachment on a highway by one abutting owner does not
justify the obstruction of the road to the same extent by another
owner: Robinson v. State (Tex. Cr. Aj-p.), 44 S. W. 509.
May, 1904.] Wright v. Austin. Ill
b. Destruction of Lateral Support. — An adjoining proprietor is, as
against a wrongdoer, entitled to the lateral support of the highway
for his buildings. And this right will be protected by injunction:
Finegan v. Eckerson, 57 N. Y. Supp. 605, 26 Misc. Eep, 574. As to
whether a change in the grade of a highway, made in the construc-
tion of a railway, is in violation of the rights of the abutting owner,
see Offutt V. Montgomery, 94 Md. 115, 50 Atl. 419; Zehren v. Mil-
waukee Elec. By. etc. Co., 99 Wis, 83, 67 Am. St. Eep. 844, 67 N.
W. 844, 41 L. E. A. 575.
c. Nuisances — Offensive Conduct. — A person in a highway who is
violent, abusive, or threatening in his language to the person over
whose land the road passes, is guilty of a trespass: Adams v. Elvers,
11 Barb. 390; State v. Buckner, Phil. (N. C.) 559, 98 Am. Dec. 83.
And one who stops in the road and uses loud and obscene language
becomes a trespasser, and the owner of the land has a right to abate
the nuisance which he is creating: State v. Davis, 80 N. C. 351, 30
Am. Eep. 86. So, where one, in violation of law, takes an old boat
that has been left by high water in a highway, and fits it up for a
grog-shop, where disorderly persons assemble and engage hi unseemly
conduct, to the disturbance of a person's family who lives near by,
and owns the fee to the road, he may sue for the abatement of the
nuisance: Green v. Asher, 10 Ky. Law Eep. 1006, 11 S. W. 286.
d. Deviation from Eoad to Avoid Obstruction. — When a public
road becomes temporarily impassable by reason of obstructions or
want of repair, a traveler may lawfully go upon adjoining land in
order to pass around the obstruction, and continue his journey. Such
a temporary and unavoidable use of private property must be re-
garded as one of those incidental burdens to which all property is
subject. But such a right, having its origin in necessity, must be
limited by the necessities that create it. It does not exist from con-
venience merely, nor when, by the use of due care, after notice of
obstructions, other ways may be used and traveling extra viam
avoided. And the public acquires no permanent easement through
this way, of necessity: Campbell v. Eace, 61 Mass. (7 Cush.) 408,
54 Am. Dec. 728; State v. Northumberland, 44 N. H. 628; Morey v.
Fitzgerald, 56 Vt. 487, 48 Am, Eep. 811.
A traveler may, when necessary in order to extricate his team and
wagon from a bog in a highway, lay down the fence by the roadside
and pass through the field: Hedgepeth v. Eobertson, 18 Tex. 858.
V. Soil and Minerals.
Not only does the soil, subject to the public easement, belong to
the person across whose land a highway runs, with the same remedies
for an injury to this residuary interest that he would be entitled
if it was entire and absolute (Cortelyou v. Van Brundt, 2 Johns. 357,
3 Am. Dec. 439; Gidney v. Earl, 12 Wend. 98); but he is entitled to all
the minerals that may be found in the highway, and ho may work
112 American State Reports, Vol. 101. [California,
the mines in snch a way as not to interfere with the public use:
Trustees of Hawesville v. Hawes, 69 Ky. (6 Bush) 232; West Coving-
ton V, Freking, 71 Ky. (8 Bush) 121. But in case the fee of a street
has passed to the city, it can maintain an action against one who
works a mine therein, and extracts the minerals: Union Coal Co. v.
La Salle, 136 111. 119, 26 N. E. 506, 12 L. K. A. 326 j Des Moines v.
Hall, 24 Iowa, 234.
VI. Trees, Grass and Herbage.
a. Grass and Herbage. — The grass and herbage growing in a high-
way is the property of the adjoining proprietor if he owns the fee
to the soil, and other people cannot lawfully cut, pasture, or destroy
it: Dubuque v. Maloney, 9 Iowa, 451, 74 Am. Dec. 358; Stackpole v.
Healy, 16 Mass. 33, 8 Am. Dec. 121; People v. Foss, 80 Mich. 559,
20 Am. St. Eep. 532, 45 N. W. 480, 8 L. E. A. 472; Tonawanda R. R.
Co. V. Munger, 5 Denio, 255, 49 Am. Dec. 239; Holden v. Shuttuck,
34 Vt. 336, 80 Am. Dec. 6S4; Cole v. Drew, 44 Vt. 49, 8 Am. Rep.
3G3; Harrison v. Brown, 5 Wis. 27. But see Hardenburgh v. Lock-
wood, 25 Barb. 2. Speaking of the pasturage in highways, the
court uses this language in Robinson v. Flint etc. R. R. Co., 79 Mich.
323, 19 Am. St. Eep. 174, 44 N. W. 779: "By the common law every
person must keep animals upon his own premises. He may use the
highway for the purpose of driving them from place to place. He
cannot use it for a public pasture. He may pasture in the highwaj-
opposite his own premises, for he is entitled to the herbage growing
there. He is not entitled to jiasturage opposite the lands of others,
e\-en when the cattle are in charge of a keeper. Such a use is not
an incident of travel for which the highway is dedicated or ap-
propriated by the public."
b. Shrubs and Trees. — The owner of land appropriated for a high-
way retains his exclusive right in trees and shrubs growing on the land
for every purpose not inconsistent with the easement of passage;
and for their injury or destruction, when they do not constitute an
obstruction or hindrance to travelers, he has a remedy: Western
Union Tel. Co. v. Krueger, 30 Ind. App. 2^, 64 X. E. 635; Deaton v.
County of Polk, 9 Iowa, 594; Edsall v. Howell, 86 Hun. 424. 33 X. Y.
Supp. >92; Piiifer v. Cox, 21 Ohio St, 24S, 8 Am. Rep. 58; Sanderson
V. llavcstick, S Pa. St. 294; note to Callanan v. Gilinan, 1 Am. St.
Pep. S43. Trees in a highway may be removed by the public author-
ities, however, when the public necessity calls for stich action:
Werner v. Flics, 91 Iowa, 146, 59 X. W. 18; Chase v. Oshkosh, SI Wis.
313. 29 Am. St. Pep. s^s, 51 X. W. 560, 15 L. R. A. 553. And it has
been held the removal may be without notice to the owner: Ely v.
Parsons, 55 Conn. S3, 10 Atl. 499. But this is doubtful: Stretch v.
Cassdj.olis, 125 Mich. 1G7, 84 Am. St. Rep. 567, 84 X. W. 51; Miller v.
Detnut etc. Py. Co., 125 Mich. 171, 84 Am. St. Rep. 569, 84 X. W. 49,
51 L. li. A. 955, Justice Hooker dissenting. Although the Michigan
May, 1904.] Wright v. Austin. 113
court decides in Wyant v. Central Tel. Co., 123 Mich. 51, 81 Am. St.
Kep. 155, 81 N. W. 928, 47 L. K, A. 497, that a telephone company may
obtain a free passage for its wires by trimming trees without first
giving the owner an opportunity to do the cutting. The right of a
telephone company to cut or trim trees in removing their wires seems
to be recognized also in Southern Bell Telephone Co. v. Francis, 109
Ala. 224, 55 Am. St. Rep. 930, 19 South. 1, 31 L. R. A. 193. Compare
Daily v. State, 51 Ohio St. 348, 46 Am. St. Rep. 578, 37 N. E. 710;
note to Chesapeake etc. Tel. Co. v. Mackenzie, 28 Am. St. Rep. 235.
And in Miller v. Detroit etc. Ry. Co., 125 Mich. 171, 84 Am. St. Rep.
569, 84 N. W. 49, 51 L. R. A. 955, it is decided that a street railroad
company has the right to remove shade trees within the limits of a
public highway, for the construction of its road, Mathout compensa-
tion for damages.
The malicious cutting down of trees by an overseer, which do not
interfere with the public use of a highway, renders him liable in
exemplary damages: Winter v. Peterson, 24 N. J. L. 524, 61 Am. Dec.
678. And if the surveyor of highways, in making or repairing them,
cuts and converts to his own use wood growing there, he is a tres-
passer: Makepeace v. Wonder, 1 N. H. 16.
If a gas company permits its pipes in the public streets to be out
of repair, so that gas escaping therefrom kills shade trees standing
in the streets, the owner may recover compensation therefor: Evans
v. Keystone Gas Co., 148 X. Y. 112, 51 Am. St. Rep. 681, 42 X. E.
512, 30 L. R, A. 651.
The owner of land over wliich a highway passes has a right to plant
trees by the roadside, in a manner not obstructing travel, ;ind
they cannot be lawfully injured or destroyed, either by private in-
dividuals or the public authorities, when no necessity exists therefor:
Wellman v. Dickey, 78 Me. 29, 2 Atl. 133; Bliss v. Ball, 99 Mass. 597;
Graves v. Shattuck, 35 X. H. 257, 69 Am. Dec. 536; Commonwealth v.
ilauck, 103 Pa. St. 536; Andrevrs v. Youmans, 78 Wis. 56, 47 X. W.
304. "Ordinarily, it may be said that the entire width of the liitrh-
way may be used; yet the owner of the land over which it passes
may, within the limits thereof, plant trees, set posts, and do such
other acts as will add to his convenience or assist in beautifying his
premises. He is encouraged in doing this by public sentiment
Public convenience may, in time, in particular locations, require the re-
moval of some of these things; and whenever the necessity arises, and
the public authorities request their removal, then the private must
give way to the public or paramount right. But while permitted to
remain, no one traveling the highway can willfully injure or destmy
them; and should anyone do so, he would justly be held responsible,
notwithstanding his plea of a claim of right to travel over any part
of the hij:hway": People's Ice Co. v. Steamer Excelsior, 44 Mich. 2;;.3,
38 Am. Eep. 246; People v. Foss, 80 Mich. 559, 20 Am. St. Kup. 532,
45 X. W. 480, 8 L. R. A. 472.
Am. !st. Key. Vul. loi — S
114 A-MKRiCAN State Eeports, Vol. 101. [California,
The ownor of a tree standing in a public street is bound to exer-
cise reasonable care that it does not become dangerous to travelers,
and any person specially injured through a breach of such obligation
has a right of action for damages arising therefrom: Weller v. Mc-
Cormick, 52 N. J. L. 470, 19 Atl. 1101, 8 L. R. A. 798. If the ownor
of a tree standing in a road a few feet from the traveled track gives
hia consent to its cutting down, he is guilty of obstructing the high-
way if the tree falls within it, and is allowed to remain there to the
hindrance or inconvenience of travelers: Note to Callanan v. Gilmau,
1 Am, St. Kep. 843.
VTI. Waters and Drainage.
a. Use of Water in Highway. — Where a spring is located in a high-
way, the owner of the land is entitled to any and all uses of it
which do not interfere with public travel or increase the public
burden of making repairs. ITie authorities have a right to drain it
in such a manner as to render the road safe from overflow, but they
have no right to divert the water to a public watering trough on the
other side of the highway: Town of Suffield v. Hathaway, 44 Conn.
5:21, 26 Am. Kep. 483. And a turnpike company has no easement in
a spring witliin its right of way. It lias a riglit of way for pul.dic
travel only over the land upon which the waters of the spring
descend, and, for the purpose of preserving its roadbed in a condition
suitable for travel, it may drain the water off; but it has no right
to appropriate or to take exclusive possession of the spring, or
exclude the owner therefrom, lie, as owner of the fee to the soil,
l.as the title to the water and the right to make any use of it not
.'acompatible with the enjoyment of the highway: I'pper Ten Mile
I'lankroad Co. v. Braden, 172 Pa. St. 4G0, 51 Am. St. Eep. 759, 33
Atl. 502.
in tlie principal case (ante. p. 97), the supreme court of Cali-
fornia holds that the owner of the soil in a highway may have the
puldic authorities restrained by injunction from taking subterranean
water from the road to sprinkle it. Yet the public authorities have
a riglit to place in a strtx't or highway a reservoir or cistern for
the purpose of retaining water to sprinkle the road, and tlie owner
of tlie land cannot maintain an action against them for so doing:
West v. I'.ancrfift, ?,2 Yt. :5(;7.
b. Watercourses, Streams and Raceways. — The right of the owner
of the soil iu a highway to fence a stream where it crosses the road
Las already been considered under "Maintenance of Fences and
Catcs," ante. If a highway is laid out over watercourses, either
nat\iral or artifuial, thr ])uhli(' should not sliut them up to the in-
jury of the ownor of the land, but should construct the road over
tlioui by ni'^ans of bridges or culverts: Perlcy v. Chandler, G Mass.
4.':;, 1 Aia. Dec. 159; Town of Groton v. Haines, 3G N. II. 338. One
Hay, 190i.] Wkight v. Austin. 115
has a right to cut or sink a raceway or watercourse under a high-
way on his own land, but he must take care that the highway re-
mains safe for travelers. He is bound to erect and keep in repair
a proper bridge, and subsequent owners of the waterway are under
the same obligation: Town of Clay v. Hart, 55 N. Y. Supp. 43, 25
Misc. Eep. 110; "West Bend v. Mann, 59 Wis. 69, 17 N. W. 972.
c. Ditches and Drainage.— The owner of land over which a high-
way passes may take advantage of the road for purposes of drain-
age if he does not thereby interfere with the rights of the public:
Thorn V. Dodge County, 64 Neb. 845, 90 N. W. 763; Baring v. Hey-
ward, 2 Spear (S. C), 533. He may dig a ditch therein, providing
he does not interfere with the use of the highway, rendering it less
safe, useful, or convenient for the public: Nelson v. Fehd, 203 111.
120, 67 N. E. 828. And he may cut a ditch across the road, although
if he does so he must, by bridging it or otherwise, keep the high-
way as good and safe for travel as before: Dygert v. Schenck, 23
Wend. 445, 35 Am. Dec. 575. A subsequent owner who continues the
ditch is also bound to keep the bridge in repair: Woodring v. Forks
Township, 28 Pa. St. 355, 70 Am. Dec. 134. The owner of the ad-
joining land may maintain trespass against another for interfering
with a drain under the road: Dubuque v. Maloney, 9 Iowa, 451, 74
Am. Dec. 358.
The public authorities may run a ditch, for the purpose of im-
provement, in front of an owner's premises, and the latter may bridge
it, though in doing so he must not obstruct the ditch or the way:
Highway Commrs. v. Ely, 54 Mich. 173, 19 N. W. 940.
VIII. Repair of Highways,
a. Use of Soil, Gravel and Rock. — When land is taken for a high-
way, the public acquires, as an incident to the easement, the right
to use, in a reasonable manner, the soil, gravel and stone found
within the limits of the way, for constructing the road and keeping
it in repair: Kreuger v. Palatine, 20 111. App. 420; Overman v. May,
35 Iowa, 89; Upham v. Marsh, 128 Mass. 546; Anderson v. Van Tas-
sel, 53 N. Y. 631. And within reasonable bounds the public should
have the right to remove and transport material from one point to
another on the highway, regardless of the ownership of the adjoin-
ing lands. The use of the material should not be confined to the
particular part of the road where it is found and taken from nor
even to that particular highway: New Haven v. Sargennt, 38 Coiui.
350, 9 Am. Eep. 360; Bundy v. Catto, 61 111. App. 209; Denniston
V. Clark, 125 Mass. 216; Bissell v. Collins, 28 Mich. 277, 15 Am.
Eep. 217; St. Anthony Falls Water Power Co. v. King etc. Bridge,
23 Minn. 186, 23 Am. Eep. 682; Huston v. Fort Atkinson, 56 Wis.
350, 14 N. W. 444. The law on this point, however, is not clear.
In at least two cases it has been decided that earth and gravel can-
IIG Amkkicax ►State Kki'ORts, Vol. 101. [California,
not, unilor piil lie autliority, be dv.a; up at one point in a highway
merely to obtain material to nse in the improvement of the highway
at some place remote from the owner's land, when the removal of
the material is not necessary to bring the road to the desired grade:
Anders'ui v. Boment, 13 ind. App. 248, 41 N. E. 547; Robert v.
badler, 104 N. Y. 221), 5S Am. Kep. 49s, lu N. K. 42S. And in Smith
V. Kome, 19 Ga. 89, 63 Am. Dec. 298, it is held that taking rock
from a bluff within the boundaries of a right of way for use in
macadamizing streets and building culverts amounts to waste, and
will be enjoined. The right of a turnpike company to dig gravel
or quarry rock witliin a highway for the repair of the road has been
denied: Turner v. Kising Sun etc. Co., 71 lud. 547; Jvelly v. Dona-
hoe, 59 Ky. (2 Met.) 4S2. Of course, soil cannot lawfully be removed
from one's laud, within the limits of a highway, when not neces-
sary for the construction or repair of the wa}': Phillips v. Bowers,
73 Mass. (7 Gray) 21.
b. Use of Timber. — It would seem clear that timber grov/ing in
a highway may, witliin reasonable bounds and under certain cir-
cumstances, be used in the construction and repair of the road. To
quote from Felch v. Oilman. 22 Vt. 3S: "No doubt the fee of the
land remains in the land b.older; and he may maintain tresjiass, sub-
ject to such rights, as are acquired under the easement, which the
l»ul)lic get. The public have simply a right of way, and the povi'crs
and privileges incident to that riglit. We think digging the soil and
using the 1inib)er and other materials, found within the limits of the
highway, in a reasonable manner, for the purpose of making and re-
liairing the road, or bridges, are incident to the easement": See,
also, Makepeace v. Worden, 1 N. II. 16; Tucker v. Eldred, 6 E. I.
404.
The foregoing language, in our opinion, should not be taken without
qualification. While, no doubt, the jniblic may be justified in many
cases in making use of timber growing in a highway for road pur-
j'oscs, still the right to such appropriation prol)al)ly depends on the
circumstances and exigencies of the case, suidi as the abundance,
character, and value of the timlier, an.l the nrgi'ucy of the juiljlic
II Is. Trees can liardly be classed as a i-oad material with sand and
gr.i\el. Said the supreme court ol New Hampshire in Baker y. Sliej)-
l::i;-i. 2 1 .\. 11. 2'!^: ''^^'e ;ire therefore of the Ojdnion tiiat, b .• lay-
iau' 'I'lt a highway, the jiublic ac(iuire z\n right to \ise any trees (ir
limber gn'win;_r up"n the lan.l for the purpose of building and rejiair-
i:i_r the mad; and that the only light they ;u-<piire in relation to such
trees is that of cutting down and renio\iiig to a convenient distance,
for the [\<>- of tlie owner, such trees as it is necessary to remove^ in
order to the w. irking or repair of the road in a proper and reason-
able manner. ' '
May, 1904.] VrrjGiiT v. Austin". 117
IX. Vacation or Abandonment of Highway.
Where a highway has been laid out by lawful authority or ac-
quired by dedication or prescription, the owners of the property
abutting thereon acquire a special property right in the continuance
thereof, of which they cannot be deprived except by due process of
law: Kray v. Muggli, 8-i Minn. 90, 87 Am. St. Eep. 332, 86 X. W.
882, 54 L. E. A. 473. See, also, Texarkana v. Leach, 66 Ark. 40,
74 Am. St. Eep. 68, 46 S. W. 807; McQuigg v. Cullins, 56 Ohio St.
649, 47 N. E. 595; Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 87
Am. St. Eep. 600, 62 N. E. 341. But when the public easement is
abandoned or relinquished, the owners of the soil are restored to
their original dominion over it. The land being freed from the
encumbrance, the owners may resume absolute control of it: Ben-
ham V. Potter, 52 Conn, 248; Omaha Southern Ey. Co. v. Beeson, 36
Neb. 361, 54 N. W, 557; Lamm v. Chicago etc. Ey. Co., 45 Minn. 71,
47 N. W. 455, 10 L. E. A. 268; Mangam v. Sing Sing, 42 N. Y. Supp.
950, 11 App. Div. 212; Paul v. Carver, 24 Pa. St. 207, 64 Am. Dec.
649; Harris v. Elliott, 35 U. S. (10 Pet.) 25; note to Ileinrich v. St.
Louis, 46 Am. St. Eep. 495. The civil-law rule, however, seoms to be
different: Mitchell v. Bass, 33 Tex. 259.
X. Remedies Available to Land Owner.
The owner of land over which a street or highway passes is en-
titled to protect and vindicate his rights in the soil by practically
the same species of actions and remedies that would be open to
him if his land was not encumbered by the way: Boiling v. Peters-
burg, 3 Band. 563; note to Mayhew v. Norton, 28 Am. Dec. 303,
304. Thus, he is entitled to an injunction against a use of the road
or street for other purposes than for travel which interfere with
his ownership of the soil: First Nat. Bank v. Tyson, 133 Ala. 459,
91 Am. St. Ivcp. 46, 32 South. 144; Wright v. Austin (the principal
case), ante, p. 97; Townsend v. Epstein, 93 Md. 537, 86 Am. St.
Eep. 441, 49 Atl. 629, 52 L. E. A. 4fJ9; Buffalo v. Pratt, 131 N. Y,
293, 27 Am. St. Eep. 593, 30 N. E. 233, 15 L. E. A. 413. And when
the highway is enoroaehed upon, he may maintain ejectment and
recover the land subject to the public easement: Taylor v. Armstrong,
24 Ark. 102; Postal Tel. Cable Co. v. Eaton, 170 Ilh 513, 62 Am. St.
Eep. 390, 49 N. E. 365, 39 L. E. A. 722; French v. Eobb, 67 N. J.
L. 2G0, 91 Am. St. Eep. 433, 51 Atl. 509, 57 L. E. A. 956; Smeberg
V. Cunningham, 9G Mich. 37S, 35 Am. St. Eep. 613, 56 N. W. 73;
note to Mayhew v. Norton, 2S Am. Dec. 304, 305. And against anv
person who commits a wrong in the highway, he may maintain tres-
pass: Pock V. Smith, 1 Conn. 103, 6 Am. Dec. 216; Hart v. Chalkcr,
5 Conn. 311; Dubuque v. Maloney, 9 Iowa, 451, 74 Am. Dec. 35S;
Mayhew v. Norton, 34 Mass. (17 Pick.) 357, 28 Am. Dec. 300; Bing-
ham V. Doane, 9 Ohio, 1G5; Lewis v. Jones, 1 Pa. St. 336, 44 Am.
lis A>ri:i;iCA\ State Eeports, A'ol. 101. [California,
r>0(\ ir><=; Colo V. Drow, 4t Vt. 49, S Am. Eep. 363; Barclay v. Howell,
31 r. S. (6 Pet.) 498. He may abate or sue for the abatement of
a miisauce: Green v. Asher, 10 Ky. Law Eep. 1006, 11 S. W. 2S6;
State V. Davis, SO N. C. 351, 30 Am. Rep. 86. For a conversion of
his timber, ho may maintain trover: Sanderson v. Haverstick, 8 Pa.
St. 294.
BANK OF UKIAII v. EICE.
[143 Cal. 265, 76 Pac. 1020.]
WILLS -Equitable Conversion. — If a testator devises land to
lii^ wife for life, in trust for tlieir children, and directs the ex-
ecutor, after her death, to soil the property and divide the proceeds
amonif the children, the efl'oct of this direction is to convert the
land into porsonalty. (p. 120.)
WILLS — Partition by Heirs. — "Whore a testator devises land
to his wit'o for life, in trust for their children and directs the ex-
ecutor, after her death, to sell the property and divide the pro-
roc is anioncr the children, their title is insuflicient to maintain par-
tition as heirs at law of the testator, (p. 121.)
WILLS — Election to Take Land Instead of Its Proceeds. —
Whore a testator directs land to be sold and the proceeds distri-
V)ntod among designated beneficiaries, they may elect, before the
sale is made, to take the land instead of its proceeds. The estate
ii? tlicroliy reconverted into realty, and their relation to it is the
same as if it had boon directly devised to them. But nntil they
iiialvo the elect ion for a reconversion, and manifest the same to
tlio cxof-utor. tluy are not entitled to the possession of the laud,
(jr t'> I'XiTcise any (ioniinion over it. (pp. 121, 122.)
WILLS— InsufRcient Election to Take Land Instead of Its
Proceeds. — Wlioro a testator devises land to his wife for life, in
trust fur tlnir children, and directs the executor, after her death,
to sell iho jiroporty and divide the proceeds among the children,
ari'i lui" of the idiildron gives a mortgage on his nndivided intor-
ost. wliich is followcil by the execution of a shorifT's deed under
n iiidirnH'iit rif forordosnre, such election to take the land instead
of its proccods, on his part only, is insuflicient to work n rocon-
\i-r--;on "f tlio property into realty; so, too, is the bringing of an
''.'■; i'Ti f.T ].artitioii liy Iho jiurcliaser under the mortgage, when
i"^ i-^ r.i.r all''u''''l tl'at tlio bonidiciarios have made an election, and
Si'Mu' I'i' thi'in are minors. (pp. ]2.">, 121.)
T..^:;.l .t l[;iv,-,M.k. ^h-Xal. .^- Ilir.-di, M. S. Sayrc an.] Sayre
li' I\<-i-lini:. !'"!■ iiu' a]i]>oll;nit<.
( 'rawfnrn i^- Craw fori! . fur lln' ro>]inni]onfs.
''^'^ llA IMM.^ON'^ C. Aition for tlio partition of certain real
f>tato.
May, 1904.] Bank of Ukiah v. Eice. 119
^^^ The land of which partition is sought was owned by
Charles Coleman Eice in his lifetime and at the time of his
death. He died January 11, 1891, leaving a last will and tes-
tament in which he appointed his wife, Jane Eice, and his son,
Benjamin F. Eice, executors thereof, and, after disposing of
certain portions of his estate, made the following disposition
of the land in question, viz. :
"I give and bequeath to my wife, Jane Eice, all the balance
of my ranch saving and excepting any part thereof which I
have heretofore disposed of, to be held by her during the term
of her natural life in trust by her for the benefit of Jeremiah
Farmer Eice, William Isaac Eice, Sam H. Eice, and Lillian
Belle Pulliam. After the decease of my wife, Jane Eice, I
hereby direct my executors to sell all the balance of my ranch
and the proceeds thereof to be equally divided share and share
alike between my sons Jeremiah Farmer Eice, William Isaac
Eice, Sam H. Eice, and Lillian Belle Pulliam.^'
The will was admitted to probate and letters testamentary
issued to the executors therein named, and thereafter they
filed a report of their administration, and an account for a
final settlement, together with a petition for a final distribu-
tion of the estate; and on May 31, 1892, the court made an
order settling and allowing the account and distributing the
land aforesaid to the surviving widow, "for and during her
natural life, and on her death the same to be sold as in said
will provided, and the proceeds arising from such sale to be
equally divided between Jeremiah Farmer Eice, "William Isaac
Eice, Sam H. Eice, and Mrs. Lillian Belle Pulliam." June 1.
1891, Sam H, Eice, one of the sons of the testator, executed
a conveyance, intended as a mortgage, to the plaintiff herein,
of all of his interest in said land. In ^lay, 1895. the plain-
tiff commenced an action for the foreclosure of tliis mortgage
and obtained a judgment under which the interest of the mort-
gagor in the land was sold to it, and a deed therefor executed
April 15, 1898. Jeremiah F. Eico, another son of the testator,
died intestate March 31, 1898, leaving as his heirs at law a
widow and two sons. One of these sons died intestate Xovcm-
ber 13, 1900, leaving as his heirs at law a widow and tliree
minor children. Jane Eice. the widow of the testator, died
January 6, 1901. Tlie present action was brought Xoveniljer
29, 1901, in which the plaintiff included 270 ^g defendants
the surviving children of tlie testator and the lieirs at law of
the above-named J. F. Eico and of his deceased son. The cause
120 American State Eeports, Vol. 101. [Caliiornia,
was tried by the court, and upon the foregoing facts the court
found that the phiintitT and defendants are not cotenants in
the tract of land described in the complaint, and rendered judg-
ment denying the prayer of plaintiff's complaint and dismissing
the action, A motion for a new trial was denied, and from this
order and from the judgment tlie present appeal has been taken.
Tlie appellants maintain their right to a partition of the
land upon tlie ground that at the death of C. C. Eice it de-
scended to his heirs at law, of whom they are successors in
interest, and upon the further ground that the administra-
tion of the estate has been completed, and as the parties herein
are the sole beneficiaries in the land they have the right to
elect to take the land itself instead of the proceeds arising from
tlie sale.
1. The testator made no devise of the land after the termina-
tion of the life estate, but his direction to tlu; executor to sell
t!)e same and divide the proceeds equally between the four chil-
dren therein named vested them with the entire interest therein
bv reason of their being the sole beneficiaries thereof. Tlie
effect of this direction in the will was to convert the land into
personalty (Civ. Code, sec. 1338) ; and the beneficiaries may
therefore be deemed legatees rather than devisees. Tlic pro-
vision in this section that the proceeds of the sale must be
deemed personal property "from the time of the testator's dt-atb"
is ajiplieable only wlien the will merely directs the sak^ to l)e
made without limiting or designating the time at whieli it is
to lie made. If the will postpones the time of the sale until tlie
liajipening of .-omo future event or until some fixed date, tlie
conversion is likewise postponed. Tliere can I'C no conversion
until the t'xeeutor sliall have the power to make the sale. This
was clearly expressed in hastate of Walkerly, 108 Cal. <iV3, 11
Pac. 7T7. 10 Am. St. Kep. 07. and note, as follows: "The rule
of e<juitablo conversion merely amounts to this, tluit wliei-e
there is a mandate to sell at a future time, equity, upon tlie
princijile of regarding that done which ought to be done, wiil
for certain purpose? and in aid of justice consider the conversion
as ell'ectefl at the time whf'n the sale ouglit to ""^ take place,
whether th.e land he then really sold or not. But wlienever (lie
direction is for a future sale, up to tlie time fixed the land is
governrd by the law of real estate."
\\'hile it may he concecled iliat upon the death of C. C. l^ice
bis title to tlie land descend.ed to his lieirs at law, their right
thereto was suhject to the administration of bis estate, and
May, 1904.J Bank of Uriah v. Rice. 121
subordinate to his testamentary disposition thereof. Their
right to the land as heirs at law was superseded by the pro-
visions of the will and the decree of the court directing its
sale and a distribution of the proceeds. The decree of distri-
bution was a judicial declaration that the beneficiaries therein
named were the absolute donees of the entire property in the
land after the termination of the life estate. By this decree
the property was taken out of the line of descent and ad-
judged to belong to the four children therein named. The
fact that the beneficiaries thus named are also heirs at law is
only a mere incident, but does not vary the legal result. Their
right to the property as heirs at law was terminated by the
decree, and whatever right they have in the land is taken by
virtue of the will and not by descent. The land is not devised
to them, and even if it should be conceded that until a sale is
had by the executor as directed by the decree the legal title
will remain in them as the heirs at law of the testator (see,
however, section 863 of the Civil Code), it is merely a formal
and barren title without any estate or interest in the land,
or right to its possession, and is therefore insufficient to sus-
tain an action for partition by them as heirs at law of the
testator: Armstrong v. McKelvey, 39 Hun, 213, 104 X. Y.
179, 10 X. E. 2GG; Purdy v. Wright, 44 Hun, 239; Henderson
V. Henderson, 113 X. Y. 1, 20 X. E. 814.
2. The appellants' right to maintain the action by reason
of their relation to the land as the beneficiaries under the
sale directed by the decree is to be determined upon a con-
sideration of different principles. It is a well-settled rule in
equity that wliere a testator directs land to be sold and the
proceeds thereof to be distributed among certain designated
beneficiaries, such beneficiaries may elect l)efore the sale has
taken place to take the land instead of its proceeds, and when
they have so elected and siifficicntlv manifested tlioir elec-
tion, the authority to sell the land cannot thereafter be exer-
cised by the executor, Init is extinguished. The estate is
'^''^ therel)y reconverted into real property, and l)y r<'r,snn of
such reconversion the relation of the l)eneficiarios to tlie land is
tlie same as if it had been directly devised to tliem : Pearson
v. Lane, 17 Ves. 101; Craig v. Leslie, 3 Wlieat, 5()3. 4 L. ed.
-3 GO; ITetzcl v. Barber, 69 X. Y. 1; Prentice v. Jansson, 79
X. Y. 478; Greenland v. Waddell, 116 X. Y. 234, 15 Am. St.
V,op. 400, 22 X. E. 367; Mellen v. :\rellen, 139 X. Y. 210. 34
X. E. 925; Baker v. Copenbarger, 15 111. 103, 58 Am. Dec.
122 American State Reports, Vol. 101. [California,
600; Iluber v. Donoghue, 49 N. J. Eq. 125, 23 Atl. 495; Swann
V. Garrett, 71 Ga. 5GG; Sears v. Choate, 146 Mass. 395, 4 Am.
St. Eep. 320. 15 X. E. 786; Pomeroy's Equity Jurisprudence,
sec. 1175; Cliaplin on Express Trusts and Powers, sec. G91.
This right rests upon the presumption that the power of sale
given to the executor was intended for tlie benefit of the bene-
ficiaries, and upon tlie principle that as they are the absolute
owners of the entire property in the land, they have the right
to direct the disposition to be made of it; and also in considera-
tion of the practical effect of a contrary rule. If they arc en-
titled to tlie entire proceeds of the sale, they could outbid any
other purchaser, and thus indirectly accomplish their desire to
retain the land.
Until the beneficiaries, however, make the election for a re-
conversion of the estate and manifest such election to the ex-
ecutor, they are not entitled to the possession of the land, or
to exercise any dominion over it. As executor of the will, ho
is entitled to its possession until the estate is settled or de-
livered over to the heirs or devisees '"by order of the court" :
Code Civ. Proc, sec. 1452. The land in question was not de-
vised to the executor, nor was any trust therein created in him
other than such as pertains to his office as executor. The ex-
pression "in trust" in the devise of the life estate to the widow
is without significance or legal effect, as no purpose of said
trust was named. The testator directed the executor, as one
of the functions pertaining to his office, to sell the property
and divide the proceeds l)etween the four beneficiaries. Until
this is done the administration of the estate will not be closed.
The provision in the decree of distribution of the life estate to
]\rrs. Rice, that on her death the land is to be sold "as in said
will provided," is a designation of the executor as the person
by wliom the sale is to be made, and postpones the closing of
tlie administration ^'^ until after such sale and the distribu-
tion of the proceeds. The sale is to be made by liim as executor,
and will not be effective to pass the title without its confirma-
tion by the court (Estate of Durham, 49 Cal. 490), and ho
will not be entitled to his discharge until he has accounted for
the proper distriluition of the proceeds. It was not necessarv
to obtain from the court an or<ler to sell the property, hut the
making of such order or liis a])))lication therefor is irrelevant
to the plaintiff's right to maintain the present action.
As tlie reconversion depends upon an election therefor by
the benefit-iaries. such election is an affirmative element in the
May, 1904.] Bank of Ukiah v. Rice. 123
establishment of their right to the land, and must be mani-
fested by some unequivocal act or declaration (Mellen v. Mellen,
139 N". Y. 210, 34 N. E. 925) ; and a plaintiff whose right of
action rests upon a reconversion resulting from such election
must not only show this fact by his complaint, but also establish
it by proof: ^Yayne v. Fonts, 108 Tenn. 145, 65 S. W. 471.
The act or declaration evidencing the intention to make the
election may be slight, but it must be unequivocal: Jarman
on Wills, *5G3; Mellen v. Mellen, 139 X. Y. 210, 34 N". E.
925; Wayne v. Touts, 108 Tenn. 145, 65 S. W. 471. A con-
veyance of the land by the beneficiaries is evidence of such elec-
tion (Gest V. Flock, 2 N. J. Eq. 108), since they thereby part
with their right to the proceeds of the sale, as well as their right
to the land, and cease to have any interest in the execution of
the power: Sayles v. Best, 140 X. Y. 368, 35 X. E. 636. If,
however, the reconversion is to be effected by a conveyance, such
conveyance must be made by all of the beneficiaries, unless the
estate is of that character that a conveyance by one or more of
them will not impair the interest of the others : Ebcy v. Adams,
135 111. 80, 25 X. E. 1013, 10 L. R. A. 162; McDonald v,
Ollara, 114 X. Y. 566, 39 X. E. 642; High v. Worley, 33 Ala
191; Harcum v. Hudnall, 14 Gratt. 369; Jarman on Wills,
*564; Chaplin on Express Trusts and Powers, sec. 696. In
Baker v. Copcnbarger, 15 111. 103, 58 Am. Dec. 600, the rea-
son for this rule is clearly stated to be that, "as each has a sepa-
rate right to insist upon the bequest as provided by the will,
their claim cannot be defeated except upon the election of all ;
hence each must have the uncontrolled right to have the land
sold, and to receive his share of the proceeds of the sale of
the land." A conveyance by one beneficiary of his undivided
interest in ^'^ the land will not operate as a reconversion of
that interest, since it needs no argument to show that the value
of a tract of land is impaired if the land can be sold only in
fractional interests.
As a necessarv sequence of the foregoing rule, if any of the
beneficiaries are incapable of making an election — that is, if
they are infants, or lunatics, or incompetent, or otherwise dis-
qualified from making contracts with reference to their pro]i-
ertv — there can be no reconversion of the estate: Seeley v. Jago,
1 P. Wms. 389; Fluke v. Executors. 16 X. J. Eq. 478; Carr v.
Branch. 85 Va. 597, 8 S. E. 476.
Tlie mortgage to the plaintiff liy S. IT. Pice of liis undi-
vided interest in the land, followed by tlie sultsequent exocu-
l"2-i American State PiEroRTS, Vol. 101. [Califoniia,
tion of tlie slicrifr's dcoil under a judgment foreclosing the
mortgage, was an act of such a positive and unequivocal cliar-
acter as to indicate his election for a reconveyance, and had the
effect to vest in the plaintitf his interest in the land, as well
as in the proceeds from the sale, in case the power of sale should
be subsequently executed: Reed v. Underbill, 13 Barb. 113;
Sayle^ v. Bostri40 X. Y. 37G, 35 S. E. 636; Harper v. Chat-
ham Xat. Bank. 17 Misc. Rep. 221, 40 X. Y. Supp. 108-4; Gest
V. Flock, 2 X. J. Eq. 108. Such election on his part only was,
however, as is hereinbefore shown, insufficient to effect a re-
conversion.
The commencement of the present action by the plaintifT
for a partition of the land Avas also a positive and unequivo-
cal act, indicating its election to take the land, and if all of
the parties interested had been capable of making such elec-
tion, and had united in the prayer for partition, a reconver-
sion would have been thereby effected: McDonald v. O'llara.
144 X. Y. 566, 39 X. E. 642; Chaplin on Express Trusts and
Powers, sec. 557. The complaint herein does not, however,
allege that the beneficiaries have so elected, nor does it con-
tain any fact indicating a reconvei'sion of the estate, or from
wliich such reconversion can be inferred, and it appears from
the record that, of the defendants, two of the beneficiaries who
are a})pellants did not appear or in any mode indicate their de-
sires, but made default to the complaint, and that tliree of the
defendants are minors, and therefore incapable of making au
election.
The finding of the court that the plaintiff and the defend-
ants ^'^ are not cotcnantp of the land described in tlie com-
plaint is therefore sustained by the evidence, and its action
in dismissing the comjilaint was without error.
Certain rulings of tlie court upon matters of practice and
procedure were excepted to by the appellant, but as these rulings
in no wise conduced to the establishment of the above fact,
tbfv are without moment and need not receive any considera-
tion.
We advise that the judgment and order appealed from be
airirnicil.
Chipman. ('., and Coo})er, C, concurred.
Yo.y the fnr<'i:iiing reasons the judgment and order appealed
from are allirmed.
?kIcFarland. ,T., Lorigan, J., Ilensliaw, J.
Hay, 1904.] McIIattox v. Eiiodes. 125
A Will Produces an Eqnitable Conversion of real estate into per-
sonalty when it devises land to the executors, and gives them a
power of sale for the purpose of disposing of the proceeds among
designated beneficiaries: Greenland v. Waddell, 116 X. Y. 234, 15 Aitk
St. Eep. 400, 22 N. E. 367. See, also. In re Cooper's Estate, 206 Pa.
St. 628, 56 Atl. 67, 98 Am. St. Eep. 799, and cases cited in the
cross-reference note thereto; monographic note to Ford v. Ford, 5
Am. St. Eep. 141-148.
Persons Benefited by the Equitable Conversion of real estate into
personalty by a will may elect to have a reconversion into realty,
and take it as land rather than the proceeds of it: Greenland v.
Waddell, 116 N. Y. 234, 15 Am. St. Eep. 400, 22 N. E. 367; although
where there are more persons than one entitled to have such elec-
tion, all of them must ordinarilv .ioin therein: See the monographic
note to Ford v. Ford, 5 Am. St. Eep. 147.
McHATTOX V. "RHODES.
[143 Cal. 275, 76 Pac. 1036.]
JUDGMENT Against Nonresident — Jurisdiction. — The Pre-
sumption of verity attending the decision of a court of general
jurisdiction on the question of its jurisdiction applies to a judg-
ment of a sister state obtained against nonresidents by publication,
although the order for publication does not appear in the record,
(p. 12y.)
JUDGMENT-ROLL.— The Order for Publication of Summons
is no part of tho juilgment-roli. (p. 130.)
JUDGMENT — Presumption as to Publication of Summons. —
If a judgment of a sister state recites that the defendants were duly
notified by publication more than thirty days before the first day of
the term of court, it must be presumed that an order was made for
the publication, and that notice was given as the law of that state
provides, (p. 130.)
Byron Waters and Waters & Wylie, for the appellant.
John "W. Kemp, for the respondent.
^'*^ COOPEE, C. Appeal from judf:;-ment in favor of plain-
tiff. The record consists of the judgment-roll and a l)ill of
exceptions.
It appears by the complaint that a contract was made 1)0-
twcen the plaintiff ajid defendant, by which plaintiff trans-
ferred to defendant certain ]iersonal ])ro]^erty in exchangt^ for
a tract of land in tlic state of ^lissouri, which defendant Ehodes
claimed to own at the time of tlie excbange.
Plaintiff alleges that after the exchange he iliscovered tliat
defendant had no title to the land described in the deed ; that
126 American State Eeports, Vol. 101. [California,
the representation that defendant had such title was false and
fraudulent; and that plaintiff has rescinded the contract.
The issue was thus made as to whether or not the defend-
ant had title to the land at the time he attempted to convc}'
it. It api)cared that one Hattie Meagher was the immediate
^antor of defendant. In order to prove that defendant had
no title the plaintiff offered, and the court admitted in evi-
dence, a certified .copy of the judgment of the eighteenth
judicial circuit of the state of Missouri, in a case where A. M.
'^'^ Bro\ra was plaintiff and Hattie Meagher et al. defendants,
which judgment directed, among other things, tliat a deed ex-
ecuted by Henry Diebcls and Jennie Diebels to Hattie Meagher
be set aside, and furtlicr adjudged the plaintiff in said action
to be the owner in fee simple of the said real estate, the same
being tlie real estate described in the complaint herein. The cer-
tified co]iy of the judgment was admitted in evidence, under
defendant's objection, for the purpose of proving that defendant
bad no title to the land. Upon this evidence the court found
tiiat tlie defendant did not own the land at the time he conveyed
to plaintiff, and gave judgment for seven hundred and fifty dol-
lars and co?ts. The objection to the judgment being admitted
m evidence was upon the ground, among others, that it did not
appear therefrom that tlie court bad jurisdiction of the persons
of Hattie ]\leaglicr and J. H. Meagher, her husband, who are
conceded to have been nonresidents of the state of ilissouri,
because they were not personally served with process of any kind
in tbe state of ^Missouri or elsewhere, and because it does not
ajjpear that tbe court or the judge thereof in the said action
e\er made any order re([uii'ing summons or other process to be
served by puldieation, or that any order of publication in said
aition was ever made at all.
Tbe recital in tbe judgment as to service upon the said Hattie
/.Feagher and her liusband is as follows: "The above-named de-
fendants have been duly notified of the institution of this suit
iiy publication in four consecutive issues of the "^Tarshfield
Mail."' a weekly newspaper printed and pul)lisbed in AVebster
county, ^lissoiiri. tlie last insertion being more than thirty days
before the first day of this term of court." It is conceded that
tbe court rendering the judgment was a court of general juris-
diction. Plaintiff introduced in evidence section 2022 of the
b'eviscd Statutes of the state of Missouri, which pro\ides that
if it is alleged in the petition or in an affidavit that defendants,
or ,-ome of tbcni, are nonresidents of the state, and cannot be
May, 1904.] McHatton v. Ehodes. 127
served in the state, the court in which the suit is brought, or in
vacation the clerk thereof, "shall make an order directed to the
nonresidents or absentees, notifying them of the commencement
of the suit, and stating briefly the object and general nature
of the petition, and, in suits in partition, describing the prop-
erty ^^** sought to be partitioned, requiring such defendant or
defendants to appear on a day to be mentioned therein and
answer the petition, or that the petition will be taken as con-
fessed. If in any case there shall not be sufficient time to make
publication to the first term, the order shall be made returnable
to the next term thereafter that will allow sufficient time for
such publication."
The court being of general jurisdiction, all presumptions are
that it had jurisdiction, and that the effect of the recital in the
judgment is, that the notice or summons was properly published.
It is declared in the constitution of the United States that full
faith and credit shall be given in each state to the judicial pro-
ceedings of every other state.
It is provided in subdivision 16 of section 1963 of the Code
of Civil Procedure that, among disputable presumptions, it is
presumed '"^that a court or judge, acting as such, whether in
this state or any other state or country, was acting in the lawful
exercise of his jurisdiction." The jurisdiction of the courts
of general jurisdiction as to persons extends in a general
sense to persons within their territorial limits, and who can be
reached by their process. In a certain class of proceedings in
rem, where the property or subject of the action is within the
territorial limits of a state, it may, by statutory provisions,
procure jurisdiction of the person of a nonresident by construc-
tive service of its process. The question as to the presumption
of jurisdiction as to a domestic judgment is very fully consid-
ered in Ee EichhofP, 101 Cal. 602, 36 Pac. 1, and it is there
said: "The fact that the court has rendered a judgment implies
a determination by it before it assumed to hear the contro-
versy, that it had jurisdiction over the subject matter of the
action, and of the defendant against whom the complaint was
directed. Its jurisdiction does not exist by virtue of its mere
decision that it has jurisdiction, as that would be reasoning in
a circle, but the presumption of its jurisdiction exists because
it has been authorized to determine this question in tlie same
mode as any other question of fact upon which its judgment is
to rest, and its decision thereon is presumed to have been made
upon evidence sufficient to sustain it. Its determination upon
128 American State Kepouts, Vol. 101. [California,
this question is to be made upon evidence of some nature, and,
whether this evidence is sufficient or insufficient to support its
conclusion ^"^ thereon, it has the jurisdiction to make the do-
termination; and if its conclusion is incorrect, it is merely error,
which can be reviewed only upon a direct appeaL Even though
it should determine the question without any evidence before
it, the same presumption of verity attends its decision upon
this point as upon any other issue which it may determine with-
out evidence. Xor does this presumption of its jurisdiction to
make tlie decision depend upon the existence of any record of
the decision."
We think the rule above stated applies equally to a judgmen"t
obtained against a nonresident by publication. The court ha.=
jurisdiction in such case, provided certain things are done.
Xotice must be given as provided by the statutes of the state.
The court must determine before ginng judgment that sucli
things have been done. The presumption in support of a judg-
ment of a court of general jurisdiction is not made to depend
upon the way in which a summons is required to be served. The
rights of nonresidents are no greater than the rights of residents,
when such nonresidents are brought before the court by proper
process. The way of bringing them into court may be different,
but in all cases where a judgment is collaterally attacked we
must presume, in the absence of anything appearing to the con-
trary, that they were properly brought in. Tlie ju'csuinption
is the same where service has been made by publication as where
personal service has been had. It is necessary that confidence
should be reposed in courts of such high cliaracter. It is the
only safe rule for the protection of per.-ons and pro|X'rty. If
such judgments are erroneous, or if they were in fact rendered
witlioiit jurisdiction, they may be reversed on ajipoal, l)v ufw
trial, or in some cases l)y proceedings in a court of equity, Init
when not questioned in some direct proceeding the good of so-
ciety demands that they shall not be collaterally attacked unless
void on their face. Such is the rule stated in most of the late
cases: liams v. lioot. 2'2 Tex. Civ. App. -113. 'yr, S. W. -in ; Buse
V. Bartlrtt. ] Tex. Civ. A]. p. .3:]r,. 21 S. W. 52; Stewart v. An-
derson. 70 'I'ex. .")S.S, 8 S. W. 29-"'); Thomas v. King, 1)5 Tenn.
GG. :U S. \V. ii83; Oimmell v. IJice, 13 :\Iinn. 400; lloagland
V. lloagbuvl. r.i riab, 10:?. 57 Pac. 20; Bank of Colfax v. Ifieh-
ardson, 34 Or. 51 S. M Am. St. l?ep. (U'A, 51 Pac. 35rt; 1 Black
on Ju<lgments, sec. 281, and cases cited.
May, i904.] McHatton v. Rhodes. 129
^'^^ Appellant contends that the rule is declared in Galpin v.
Page, 18 Wall. 350, 21 L. ed. 959, to be, that no presumption
shall be indulged in favor of a judgment against a nonresident
by publication. There are expressions in the opinion very much
tending in that direction. But whatever may have been said in
Galpin v. Page must yield to the later and better rule laid down
in Applcgate v. Lexington etc. Min. Co., 117 U. S. 255, 6 Sup.
Ct. Pep. 742, 29 L. ed. 892, where it is said: "Where a court of
general jurisdiction is authorized in a proceeding either stat-
utory or at law or in equity, to bring in, by publication or other
Substituted service, nonresident defendants interested in or hav-
ing a lien upon property lying within its territorial jurisdiction,
but is not required to place the proof of service upon the record,
and the court orders such substituted service, it will be presumed
in favor of the jurisdiction that service was made as ordered,
although no evidence thereof appears of record, and the judg-
ment of the court, so far as it affects such property, will be
valid.''
It is said in Black on Judgments (vol. 1, sec. 281), in com-
menting upon some of the earlier cases, including Galpin v.
Page, 18 Wall. 350, 21 L. ed. 959: "but on the other hand, most
of the later decisions contend, and with much show of reason,
that such a rule is arbitrary and illogical, for, say they, the court
is none the less a court of general jurisdiction because in this
instance the legislature prescribes a special mode for the exer-
cise of its powers According to this view, in cases uf
constructive service, the record, if silent or incomplete, should
be aided by the same presumptions which obtain in the case of
ordinary judgments founded upon personal service." And, after
referring to the later decisions, it is said in Freeman on Judg-
ments (vol. 1, sec. 127) : "The position is taken that presump-
tions of regularity are applicable to the proceedings of courts
of record, not because of the particular means which these tri-
bunals happen to employ, under the authority of the law, for
the purpose of acquiring jurisdiction of the defendant, but
because of the high character of the courts themselves, and this
character is essentially the same in all cases irrespective of the
methods employed in tbe service of process."
In this case the order for publication does not appear in the
record, and hence appellant claims tliat tbe rule stated '^^ in
Applcgate V. Ix?xington etc. Min. Co., 117 U. S. 255, 6 Sup.
Am. St. Rep. Vol. 101—9
130 American State EEroKTS, Vol. 101. [California,
Ct. Eep. 742, 29 L. ed. 892, docs not apply. It is sufficient
to say that the order is no part of the judgment-roll, and can-
not be considered : In re Newman, 75 Cal. 220, 7 Am. St. Ecp.
146, 16 Pac. 887; Siclilcr v. Look, 93 Cal. 603, 29 Pac. 220. In
the latter case it was held on direct appeal that where a sum-
mons was served by publication, "'in support of the judgment
of the court, it will be presumed upon a direct appeal, in the ab-
sence of any evidence to the contrary, that this mode of service
was made under a proper order of the court therefor, and that
a sufficient affidavit for such order was presented to the court
before making the order.'^ In the case at bar the recital in the
judgment is, that the defendants have been duly notified by
publication more than thirty days before the first day of the
term of court. We must presume that an order was made for
tlie publication of the notice, and that the notice was given as
the laws of Missouri provide. The record does not show that
the court did not have jurisdiction.
It is claimed by a])pc'Uant that tiio judgment should have been
that the property be restored to the plaintiff, and not for the
value of the property. The complaint, which is verified, alleges
that the property has been sold by defendants and the proceeds
thereof converted to tlieir own use. The answer does not deny
tliis. Therefore, it was not necessary to find upon the ciiif^stion,
and it would have been useless to make a judgment in the al-
ternative. We find no error in the record.
It is advised tliat the judgment be allirmed.
Chipman, C, and Harrison, C, concurred.
For the reasons given in the foregoing o]iinion the judgment
is allirmed. McFarland, J., Ilensliaw, J., Lorigan, J.
WJirn a JiKhimmt of a court of general jurisdiction is nttncl<e(i
collaterally, the presumption is that jurisdiction over tlio deleniant
was obtained: I3urke v. Interstate Sav. etc. Assn., 25 Mont. 315, <S7
Am. St. Rep. 41G, G4 Pac. 879; Haui)t v. Siniincrton. 27 Mont. 4m), !M
Am. St. Rep. S3n, 71 Pac. 672; Gulickson v. Bodkin, 78 Minn. 33,
7<i Am. St. Kep. 3."2, 80 S. W. 7S3. But see Mulling v. Rieijer, 1G;>
^ro. ,-,21. 92 Am. St. Eep. G51, 70 S. W. 4. And if a judf,ni:.'nt re-
cites that service of summons was dulv made, it must lie presumed
that tluit fact aj)peared to the court by com{)eteut proof: Knili v.
r.ermau Sav. etc. Soc., 25 Wash. 349, 87 Am. St. Eep. 757, G5 lac.
559.
Jndijmrntfi RrmUrrd vpun Cnn.^tnirttvc Srrrirr hv publication aie
piven tlie same conclusive effect and are entitled to the same fav-
orable y>resumptions as are judgments upon personal ser\ice: Hardy
V. Beaty, b4 Tex. 502, 31 Am. St. Eep. 8U, 19 S. W. 775. See,
June, 1904.] Aigeltinger v. Einstein. 131
further, Boyle v, Musser-Sauntrv etc. Mfg. Co., 88 Minn. 456, 97
Am. St. Kep. 538, 93 N. W. 520; Bank of Colfax v. Richardson, 34 Or.
518, 75 Am. St. E-ep. 664, 54 Pac. 359; Hunter v. Ruff, 47 S. C. 525,
58 Am. St. Rep. 907, 25 S. E. 65.
AIGELTIXGER v. ETXSTEIK
[143 Cal. 609, 77 Pac. 669.]
FRAUDUIoENT CONVEYANCE— Bill to Set Aside Before
Judgment. — A creditor who attaches real estate as the property of
his debtor, after an alleged fraudulent conveyance thereof, can-
not, before reducing his claim to judgment, maintain a creditor's
bill to set aside the conveyance, (p. 136.)
Waldemar J. Tuska, for the appellant.
Myer Jacobs and Arthur J. Dannebaum, for the respondents.
«i» CHIPMAN", C. Creditor's bill. Defendants had judg-
ment on demurrer, to the sufficiency of the complaint from
which plaintiff appeals. The complaint alleges that defendants
are husband and wife; that in March, 1899, Jacob conveyed to
his wife, Delphine, without any consideration paid therefor,
the land in question for the purpose of avoiding the then
existing claims of his creditors, among them the plaintiff,
of which purpose his wife had full knowledge when she took
the deed; that the money loaned by plaintiff to Jacob was
used by the latter, and also was used for the benefit of a
certain partnership of which Jacob was a member, and of
which, at the commencement of the suit, he was the sole sur-
viving member; that said copartnership was indebted in a
large sum to divers creditors, and was unable to pay its lia-
bilities, and was insolvent; that Jacob had no property that
was exempt from execution other than the land in question.
Subsequently, January 30, 1900, plaintiff brought his action
in the superior court against defendant Jacob, and regularly
sued out a writ of attachment, which was, on February 2, 1900,
duly levied on the said land as the property of Jacob, but as
^^^ standing in the name of said defendant Delphine, and said
levy is now in full force and effect.
Plaintiff's prayer is, that the conveyance referred to be
declared void; that it be adjudged that he has a good and
133 A-MKRiCAN State Eepouts, Vol. 101. [California,
substantial lien upon the real property described in the com-
plaint; and that he have such further relief as is pro]^>er in
the premises.
The only ground on which defendants claim that the de-
murrer was rightly sustained is, that on the case made in the
complaint judgment was a necessary prerequisite to the action
to set aside the alleged fraudulent transfer. Xo other question
is presented by the briefs.
Mr. Pomeroy says: "It is a necessary result from the wliole
theory of the creditors' suits that jurisdiction in equity will
not be entertained where there is a remedy at law. The general
rule is, therefore, that a judgment must be obtained, and
certain steps taken toward enforcing or perfecting such judg-
ment, before a party is entitled to institute a suit of tliis
character. In this there is a uniformity of opiiiion, but the
dilliculty arises in determining exactly how far a plaintiff
should proceed after he had obtained his judgment": 3 Pome-
roy's Ikjuity Jurisprudence, sec. 1415.
The courts, however, all agree and have held that there are
exceptions to the general rule stated above. Wliether tlie case
of an attaching creditor who has by his writ secured a lieu on
the property, but as yet has no judgment, comes within the
exception is a question about which the decisions are not
harmonious. Our statute reads as follows: "A creditor can
avoid the act or obligation of his debtor for fraud only wlure
tlie fraud ol)structs the enforcement by legal process of liis
right to take the property affected by the transfer or obliga-
tion."
Appellant claims that it has been decided by tliis court that
an attaching creditor could Ixsfore judgment have liis bill in
equity to set aside the fraudulent conveyance of tlie attached
property without waiting judgment: Citing Ilfyneinan v. I)an-
nenberg, G Cal. 37G, Go'Aiu. Dec. 519; Scales v. Scott, 13 Cal.
:r,; Conroy v, Woods, 13 Cal. G33, 73 Am. Dec. G05 ; Bickerstaif
v. Doul), 19 Cal. 109, 79 Am. Dec. 20 1 ; Castle v. leader, 23 Cal.
76. It becomes necessary to examine *^'^ tliese decisions of this
court. In Ileyneman v. Danneul)erg, G Cal. 37G. G5 Am. Dec.
519, tlie action was by an attacliing creditor to enjoin the
sheriff from selling property on execution under a judgment
alleged to have been framhilently olttained by Dannenberg
against tlie deljtor (^lorris) a few days before tlie filing of the
Ijill. Plaintiffs attachment was subsequent to the execution.
June, 1904.] Aigeltingee v. Einstein. 133
All the facts alleged in the bill, except the fraud, were admitted
in the answer.
The court, after stating the general rule to be as we have
shown, said: "The modern decisions of some courts of the
United States seem, however, to have relaxed the severity of
the English rule, and in some cases it has been held that a
creditor who has acquired a lien under the attachment laws
of a state may apply to a court of chancery without first pro-
ceeding to judgment. Without expressing any preference
for the modem doctrine, we are satisfied that the facts and cir-
cumstances of this case take it out of the ancient rule." The
reason given was that unless the sale could be stayed "the
pro2>erty which they [plaintiffs] have attached in the mean-
time would have passed into the hands of bona fide purchasers
under color of a judicial sale, and be lost to them forever."
The court further said that the jurisdiction could not be
refused in a case like the present, Avhere the sole issue was one
of fraud, and where by such refusal the fraud complained of
would be most successfully consummated. Scales v. Scott,
13 Cal. 76, was a similar case, and Heyneman v. Dannenberg,
6 CaL 376, 65 Am. Dec. 519, was followed. In both cases
personal property was attached as we infer. In Conroy v.
Woods, 13 Cal. 633, 73 Am. Dec. 605, the court said: "The
authorities do not place the right to go into equity upon the
ground that plaintiffs must show themselves to be creditors by
judgment; but they go on the ground that they must show a
lion on the property; and this lien exists as well by the levy
of an attachment as by execution." These observations must
be read in the light of the facts disclosed, and they show that
the court did not question the general rule, but found sufficient
circumstances not unlike those in the cases last above noted, to
bring the case within the exceptions to the rule. Conroy v.
Woods, 13 Cal. 633, 73 Am. Dec. 605, does not support" the
doctrine on which appellant relies. Besides, it appears that
tlio plaintiff and interveners in that action had ^^^ not only
attachment lions, but also had judgments. The point decided
in Bickerstaff v. Doub, 19 Cal. 109, 79 Am. Dec. 204, was, that
wlicre the property is in the possession of a stranger to the
writ, claiming it as his own by virtue of a transfer to him from
the debtor, which would prevent the latter himself from retak-
inor the possession, the officer must produce not only tlie writ
l)ut the judgment which authorizes its issuance. And the
134 AMKHiCAN State rii-roirrs, A'ol. 101. [California,
court then states tlie rule as we have given it supra, adding,
"or has some proL-ess regularly issued, as in the case of an at-
tachment authorizing a seizure of the property": Citing Thorn-
burgh V. Hand, 7 Cal. 554. In the latter case the vendee of
certain pei-sonal property of the debtor brought replevin
against the sheriff, who sought to justify under a writ of at-
tachment by which he had seized the property. The question
involved was whether tlie officer could justify by simply pro-
ducing the writ and proving the existence of the debt, or
whether he must not also show all the proceedings on which
the writ was based, and the court held that he must show the
regularity of all the proceedings which were the basis of the
writ. As this was not shown, the justification failed. It is,
however, fairly inferable from the opinion that it would have
been held sufficient had the sheriff shown the proceedings to
be regular and that the writ was properly issued. Without af-
firming or denying this view of the question, where an officer
seeks to justify his seizure and possession of property, we do
not think the doctrine supported by reason or the weight of
authority when applied to a creditor at large who attiKks tlie
transfer, armed alone with a writ of attachment duly served
and an alleged indebtedness not yet brought to judginent, and
in the absence of any circumstances showing a necessity for
equitable interposition, in order to preserve the property from
transfer to innocent third ])ersons. In the concluding |)ara-
graph of the o])inion in Bickerstalf v. Doub, 19 Cal. lOil, TO
Am. Dec. 20-k the court said: "Unless the transfer were made
to hinder, delay or defraud creditors, the sherilf tould not ques-
tion its validity, and not even then without liivt prodiu'ing the
judgment under which the execution lie held was issued."" The
remaining case relied on by appellant — Castle v. Bader, "23
Cal. "() — was decided on the ground that the facts constituting
llie fraud were not sullicienlly alh^irtd or found. It was also
^"'^ * said by the court that the complaint was insufficient in
that it docs not aver that ])laintiirs have aojuired any lieu on
the prupcrlv tlu'v seek to have a])])licd in satisfaction of their
(Ichts. or thai thcv have ol)taine(l judgment on their debts on
whieh execution has been issued, and return no ]tro]ierty fouin!.
Vpon a carefid examination of these eai'ly cases, we (hi not
find that tliev necessarily involved or decided the question wo
now have licfore us. In McMinn v. Whelan. 27 Cal. 300. the
del'endants sought, among other defenses, to attack the convey-
June, 1904.] Aigeltinger v. Einstein. 135
ance in question. They had a judgment, which, however, was
held by the court to be void, and they then claimed the right
to attack the conveyance by reason of an attachment levied on
the property. The court said: "If the defendant O'Connor
had a lien on the premises by reason of the attachment, that
lien could not be rendered effectual for the purpose of impeach-
ing the conveyance to the plaintiff until judgment be obtained
in the suit of Gleason v. Maume, and it is possible that no such
judgment will ever be obtained. If the defendant O'Connor,
as the assignee of Gleason, was, at the commencement of this
action, and when it was tried, the creditor of ^Matthew MaiuuQ,
he was simply a creditor at large without a judgment, and
hence not in a position to maintain an action by answer in the
nature of a cross-bill in equity to set aside the conveyance made
to plaintiff." The case of Blanc v. Paymaster Min. Co., 95
Cal. 52-i, 29 Am. St. Eep. 149, 30 Pac.'^765, furnishes an ex-
ception to the general rule, and on the peculiar facts alleged
and shown, a fraudulent conveyance was set aside without judg-
ment first obtained against the fraudulent vendor — debtor. In
Miller v. Ivehoe, 107 Cal. 340, 40 Pac. 485, the debtor had com-
menced proceedings in insolvency, which prevented plaintiffs
from obtaining judgments against him. The action to set
aside the alleged fraudulent conveyance to his wife, brought on
behalf of all the creditors, and asking that when the assignee
in insolvency should be appointed that he be made a party,
was sustained. Murray v. Murray, 115 Cal. 266, 56 x\m. St.
Pep. 97, 47 Pac. 37, was also by its peculiar facts taken out of
the operation of the general rule.
Section 1589 of the Code of Civil Procedure gives an execu-
tor or administrator authority to bring an action to set aside
the fraudulent conveyance of his testate or intestate for the
<>i5 ijenefit of creditors, "when there is a deficiency of assets
in the hands of the executor or administrator."^ It has been
held under this section that it must appear: 1. That there are
creditors to be paid; 2. That there is an insuiKciency of as-
sets in the hands of the administrator to meet their demands;
and 3. The claims of the creditors must be evidenced liy a
judgment obtained in this state, or they must have been al-
lowed by the administrator or executor, which is the equivalent
of a judgment: Fordo v. Exempt Eire Co., 50 Cal. 299; Olini
V. Superior Court, 85 Cal. 545. 20 Am. St. Pep. 245, 26 Pac.
244; Field v. Andrada, 106 Cal. 107. 39 Pac. 323. It may be
136 American State Reports, Vol. 101. [California,
said that these cases do not reach the precise point now before
us. But if general creditors of an estate, as well as the admin-
istrator, may not bring their action against the fraudulent ven-
dee of the deceased debtor without first having their claims
allowed, the principle involved would seem to have some ap-
plication. The question will be found discussed and tlie au-
thorities on both sides collated in Wait on Fraudulent Convey-
ances, sec. 81, Bump on Fraudulent Conveyances, sec. 538,
Pomeroy's Equity Jurisprudence, sec. 2185, and 5 Encyclo-
pedia of Pleading and Practice, p. 525. Among the decisions
supporting the view taken by the lower court, we find the rea-
soning of Mr. Justice Brewer in Tennent v. Battey, 18 Ivan.
324, entirely satisfactory. Briefly summarized, the reasons
given were: Though the attachment is a specific lien, it is a
lien of very uncertain tenure. It may be defeated by dissolu-
tion on motion, or by a judgment in favor of defendants on
the merits of the claim. Suits by attachment are common, and
the writ issues without any order of the court and on the affi-
davit of the creditor alone, alleging any one of the statutory
grounds. No advantage would inure to the creditor, except in
the mere matter of time, by sustaining the equitable action.
The seizure of the officer preserves the lien as against all
changes and transfers, and everything the debtor or his assignee
could do subsequent thereto. Except as to perishable prop-
erty and property whose keeping is expensive, no sale can be
ordered until after judgment, and for such property there
would be no advantage to sustain an action like this. It
might happen that the attention of the court would be occupied
in useless litigation because the attachment miglit be dissolved
before judgment, which would end tlie lien and *^*** also the
action to set aside the conveyance, Tlie claim of tlio creditor
.should be certain before he can concern himself with tlie debt-
or's frauds, and it cannot be made certain except by judgment.
A claim that is merely asserted ought not to be sufficient. It
may l)e conceded tliat an officer has the right to defend his pos-
session of the attaclied property, and often the defendant's
acts may be inquired into; ])ut it does not seem to follow that
because an officer may do this, the plaintiff may prosecute an
independent action, not to preserve the possession, but to clear
up the title. Wlien the claim has become certjiin he may in-
quire into the title. Possession may be preserved to preserve
June, 190-i.] Aigeltinger v. Einstein. 137
the attachment lien, but nothing more is necessary until the
claim is made certain.
It seems to us that there is no satisfactory answer to this
view of the question. It does not appear from the complaint
that there is any danger of plaintifE^s lien being lost. Plaintiff
has no right under his attachment beyond that of using such
measures as may be necessary to preserve his security until he
can reduce his claim to judgment; the attachment is but a pro-
visional remedy that can avail nothing beyond fixing a lien
on the property pending the inquiry into the merits of the
claim. We do not think the plaintiff should have the right to
harass third parties with litigation that may prove fruitless,
in efforts to remove obstructions to the sale of the property,
until he has first established his right to have a sale. There
is no hardship in enforcing such a rule, while great hardship
and needless annoyance might ensue upon the adoption of the
rule for which plaintiff contends.
Turning to our statute, supra, can it be said in the present
case, that the alleged fraud "obstructs the enforcement by
legal process of his [the creditor's] right to take the property
affected by the transfer"? Plaintiff has his lien on the land
secured against the whole world, and he is entitled to no other
legal process until he has his judgment. When he has judg-
ment, he then has his execution, but as the transfer would ob-
struct the sale under the execution or "legal process," he may
then have the obstruction removed, should there be no other
property of the debtor sufficient to meet the demand, which latter
fact may appear by return of the execution, nulla bona, or may
appear by the admission of the allegation in the complaint that
the debtor has no property ^^"^ subject to execution except the
property in questioji, or that he is insolvent.
It is advised that the judgment be affirmed.
Harrison, C, and Cooper, C, concurred.
For the reasons given in the foregoing opinion the judg-
ment appealed from is affirmed.
McFarland, J., Lorigan, J.^ Henshaw, J.
A Creditor's Bill cannot, as a general mle, be maintained before
the claim is reduced to .iudgment: See the monographic note to Ladd
V. Judson, 66 Am. St. Eep. 276, on what claims will snpport a cred-
itor's bill. Consult, also, the subsequent cases of Spooner v. Trav-
133 AiNfERiCAX State Reports, Vol. 101. [California,
elers' Ins. Co., 76 Minn. 311, 77 Am. St. Ecp. 651, 79 N. W. 305;
Adou V. Spencer, 62 N. J. Eq. 782, 90 Am. St. Eep. 484, 49 Atl. 10,
56 L. R. A. 817; Mallow v. Walker, 115 Iowa, 238, 91 Am. St. Rep.
158, 88 N. W. 452; Hutchinson v. Maxwell, 100 Va. 169, 93 Am. St.
Kep, 944, 40 S. E. 655, 57 L, R. A. 384.
I>s^ RE REED.
[143 Cal. 634, 77 Pac. 660.]
CRIMINAL LAW — Inadeauate Sentence — Habeas Corpus. — A
judgment of imprisonment for a term lesg than that prescribed by
statute for the offense committed is not void, and the prisoner will
not be discharged on habeas corpus, (p, 139.)
Hugh O'N'eill, for the petitioner.
J. W. Tompkins, warden, respondent in propria persona.
*^* ]\rcFARLAXD, J. Joseph Reed, whose discliarge from
•the custody of the warden of the state prison at San Quentin
is prayed for in tlie petition lierein, was charged in the superior
<!0urt with robhery and a former conviction of petit larceny.
lie confessed the prior conviction and pleaded "2s ot guilty" to
the charge of robbery. On October 23, 1903, he was convicted
of an assault with intent to commit robbery; and on Xovember
11, 1903, judgment was entered sentencing him to the state
prison for the term of seven years.
It is contended that the judgment above noticed is void for
these reasons: Section 2"30 of the Penal Code provides that a
person guilty of an assault with intent to commit robbery is
punishal)le by imprisonment in the state prison "not less than
one ]i()r more than fourteen years," and section (]()G provides
that when a person, having previously been convicted of jietit
larceny, subsequently commits a crime punishable by imprison-
ment in the state jtrison for a term exceeding ten years, such
person is punishable by iinjjrisonment in the state ])ris<ni "n<it
less tliaii ten years"; and it is contended that on account of
these ])rovisions the court had no jurisdiction to sentence '''*""'*
Reed for a term less than ten years, and tliat the judgment is
tliend'ore void. lUit this contention is not maintainable. It
is not ne(■es^ary to consider wlv'tlier, upon appeal l)v th(^ state,
the judgment would 1)0 held to be erroneous and the trial court
direeted to render a judgment of imprisonment for. at least, ten
June, 1904.] In" ee Eeed. 139
years. It is not enough on this proceeding of habeas corpus
to show that the judgment is erroneous. It must be shown
that it is void for want of jurisdiction to render it — and that
is not shown here. The judgment docs not impose any kind
of punishment different from that prescribed by the code, and,
as was said in the concurrring opinion in Ex parte Soto, 88
Cal. 629, 2G Pac. 530, "it is within, and not in excess of, the
authority of the statute." If the judgment had been for ten
years, it would Irave been a judgment for seven years and three
years more, and, so far as the mere naked question of jurisdic-
tion is involved, the power to sentence for the longer term in-
cludes the power to sentence for the shorter. The judgment
is not therefore wholly void; and even if this were a proceed-
ing in which the judgm.ent could be questioned for error, as
such error, if an}'-, would have been in favor of Eeed, he would
not be aggrieved thereby. ]\Ioreover, if we could hold here that
the judgment is invalid, it is difficult to see what course could
be pursued other than to order the trial court to enter the
proper judgment for a term not less than ten years, which
judgment would be greatly prejudicial to the petitioner, and
of course not desired by him: See People v. Eiley, 48 Cal. 549.
Petitioner relies on Ex parte Bernert, G2 Cal. 524. That case
may possibly be distinguished from the case at bar — as the
right of a municipality to pass the ordinance for the violation
of which the petitioner there was held, and a conflict between
such ordinance and the statute of the state, were largely dis-
cussed; but if what was decided in that case is irreconcilably
inconsistent with the conclusion hereinbefore stated, it must be
considered as, to that extent, overruled.
The prayer of the petition is denied, and the said Eeed re-
manded to the custody of the said warden, and tlie writ is dis-
charged.
Angellotti, J., Shaw, J., Tan Dyke. J., Lorigan, J., Ilcn-
shaw, J., and Bcatty, C. J., concurred.
For Aritlinrittes upon the question involvo'T in the prinf^inal case,
see the monojrraphic note to Koepke v. Hill, 87 Am. St. Rep. 195,
on habeas eorpns to release a prisoner after judgment and sentence.
An excessive sentence is not prround for a new trial: McCollum v.
State, 119 Ga. 308, 100 Am. St. Kep. 171, 40 S. E. 413.
CASES
IN THE
SUPEEME COUKT
ov
IDAHO.
BAXXOCK COUXTY v. BELL.
[8 Idaho, 1, 65 Pac. 710.]
THE STATUTE OF LIMITATIONS Runs Against a County
to recoser public iiionoy wroiifffully collecteil and withheld by one
of its fiducial agents, who is an ex-county ofiicer. (p. 143.)
S. C. Winters and F. S. Dietrich, for tlie appellant.
F. ^Martin, attorney general^, and J. W. Eden, for the re-
spondent.
^ SULLIVAX, J. '^I'liis action was hro\ight by Bannock
county against the appellant, who was clerk of the district court
and ex-i.ilicio auditor aiul recorder of said county for the years
isiii) and 1894. The complaint contains two causes of action,
one for each of said years. It is alleged in the complaint in the
first cause of action that the appellant, as clerk, auditor and
recorder of said county, did, on the sixteenth day of January.
ISI14. ]n'('.-ent to the lioard of county commissioners of said
munty an account for services rendered by the appellant for
said county for the year 1S1)3 in Ids ollicial capacity, anifninting
to sso.-).';-,"') ; that thereafter, on the seventeenth day of January,
is'.i}, said board alhnved said account, except for the sum of
s.'iv'-.^o, and ordered a warrant drawn in favor of appellant for
the .-urn so allowed, to wit, ^T.")'^'.;).") ; and that said warrant was
j'aid by the treasurer of said county. In the ^ fiftli paragraph
of tlie complaint is set out an itennzed statement of the items
alleired to have been illegally, eorruptly, and fraudubiitly al-
lowed, amounting to $110.00, and it is alleged that none of said
(110)
June, 1901.] Banxock County v. Bell, 141
items were proper charges against said county, and that by
reason of the allowance and payment of said claim the appellant
became indebted to said county in the sum of $410.60; that
demand has been made on appellant to pay the same, and he has
refused to do so. For a second cause of action the necessary
allegations are made charging appellant with having collected
from said county, as clerk, auditor, and recorder thereof, for
services rendered during the year 1894, illegal fees to the amount
of $329.10. A general demurrer was filed to said complaint
and overruled. The answer puts in issue the material allegations
of the complaint, and also sets up the statute of limitations.
The cause was tried by the court and judgment entered against
the appellant for $1,068.81, interest and costs. This appeal
is from the judgment, taken within sixty days after the entry
thereof.
The record contains a bill of exceptions purporting to con-
tain all of the evidence taken on the trial. Several errors are
assigned, but, in our view of this case, it is necessary to notice
but one of them. It is contended that the complaint shows
on its face that both causes of action stated therein are and were
barred by the statute of lin^ stations. Section 4053 of the Re-
vised Statutes provides that the period within which to com-
mence an action upon a contract, obligation, or liability not
founded upon an instrument of writing is four years. Section
4060 of the Eevised Statutes provides as follows: "An action
for relief not hereinbefore provided for must be commenced
■within four years after the cause of action shall have accrued."
Section 4061 of the Revised Statutes provides that the limita-
tions prescribed in chapter 3 of said Revised Statutes apply to
the state the same as to private parties. The complaint, on its
face, shows that the first cause of action accrued on the seven-
teenth day of January, 1894, and that the second cause of action
arose on the fourteenth day of January, 1895. This action was
commenced on the twelfth day of "* March, 1900, about five
years and two months after the last cause of action arose, about
one year and two months after the action was barred by tbe
statute of limitations. Under the provisions of either of said
sections 4053 or 4060 of the Revised Statutes said action was
barred within four years after the cause of action accrued. Un-
der the provisions of section 4061 the statute of limitation ap-
plies to the state as well as to private parties. Section 3-^6 of
the Code of Civil Procedure of California is the same as sect ion
142 Amkricax State Reports, Vol. 101. [Idaho,
40(11 of the Eovisod Statutes, each of which provides that tl^.o
statute of limitations ap})lies to actions brought in the name of
the state in the same manner as to actions by private parties.
Under the provisions of subdivision 1, section 339, of the Code
of Civil Procedure of California, which contains the same pro-
visions as our section 4053, except the limitation is fixed at two
years, the supreme court of that state held that when money
belonging to the county is received by the county auditor, an
action against him is barred in two years: San Luis Obispo Co.
v. Farnum, 108 Cal. 567, 41 Pac. 447. It was held in Board
V. Van Slyclv, 52 Kan. 622, 35 Pac. 299, that a cause of action
for fees not accounted for and wrongfully retained by the county
clerk accrues at the end of each quarter, when the allowance
of salary is made; and is barred, under the three year statute
of limitations, if the action is not brought within that period.
It was also held that the statutory limitation could not be ex-
tended by the failure to demand the payment of the fees col-
lected, as no demand was necessary for fees so illegally retained.
In People v. Van Xess. 76 Cal. 121, 18 Pac. 139, the supreme
court of California held that the statute of limitations applies
to actions brought by the state for sums collected and held by
a public officer, which the statute required him to pay into the
l)ublic treasury. In People v. ]\Ielone, 73 Cal. 574, 15 Pac.
294, the supreme court of California held that the statute of
limitations ai)])licd to the state. That was an action against
the Secretary of State to recover fees received by him. which by
law he was reciuirod to pay over to the state. The following cases
hold that the statute of limitations runs against a ^ municipal
corporation: In re Opening of Beck Street, 19 Misc. Pep. 571,
4 1 X. Y. Supp. 1087; In re 0})cning of Fox Street, 19 Misc.
li'ep. 5:1. 44 X. Y. Su])p. UIS7; Ilartman v. Hunter. 56 Ohio,
175, 4 6 X. E. 577; Gaines v. Hot Springs Co., 39 Ark. 2(12;
City .)f r.c.lford V. Willard, 133 Ind. 562, 36 Am. St. Pep. 563,
00 X. E. :u;S; May v. School Dist., 22 Xeb. 205, 3 Am. St. Pep.
266, ;U X. \V. ;i:7; state v. Dunbar's Estate, 99 Mich. 99,
5T .\. \V. llHo. In the opinion in ^lay v. School Dist., 22 Xc!).
205. 'A Am. St. pep. 2(i6, 34 X. W. 3:7, the court quotes as fol-
lows friim \Voo(l on Limitation of Actions: ''In Wood on Lim-
itation of Actions, section 53, it is said: 'The maxim, "X'ullum
tciiijius occurnt rcgi"^ ["Lapse of time dues not bar the J';glit
of ;iii' crown""! only a])plies in favor of the sovereign power,
and has no application to municipal corporations deriving their
June, 1901.] Baxxock County v. Bell. 143
powers from the sovereign, although their powers, in a limited
sense, are governmental. Thus the statute runs for or against
towns and cities in the same manner as it does for or against
individuals.' "
It has been suggested that the statute of limitations does not
run against a county to recover public money wrongfully with-
held by one of its fiducial agents, and that the clerk received
said money as such agent. We cannot concede that view, as the
whole current of modern authority is to the effect that implied
trusts are ■within the statute, and that the statute begins to run
from the time the money was wrongfully received. In a note
to section 343 of the Code of Civil Procedure of California,
which section is the same as section 40G0 of the Revised Stat-
utes, it is stated that, '%y the whole current of modern author-
ities, implied trusts are within the statute, and the statute be-
gins to run from the time the wrong was committed by which
the person becomes chargeable as trustee by implication." To
sustain the position that the statute of limitations does not run
against a county, counsel for respondent cites Fremont Co. v.
Brandon, 6 Idaho, 482, 56 Pac. 264; Ada Co. v. Gess, 4 Idaho,
611, 43 Pac. 71; Elmore Co. v. Alturas Co., 4 Idaho, 145, 95
Am. St. Pep. 53, 37 Pac. 349; Dunbar v. Board, 5 Idaho, 407,
49 Pac. 409. In the first case cited this court held that, the de-
fendant being a fiducial agent of the county, and having received
money in trust for the county, the statute of limitations did
not run ^ against the county in an action to recover such money.
The statute of limitations of this state is expressly made ap-
plicable to the state. It is, therefore, applicable to the counties
of the state, and, so far as the case of Fremont Co. v. Brandon,
6 Idaho, 482, 56 Pac. 264, holds that said statute does not run
against the county, the same is hereby overruled. The other
three cases above cited are not in point in the case at bar. The
judgment is reversed and remanded, with instructions to sus-
tain the demurrer, and for further proceedings in conformity
with the views expressed in this opinion. Costs of this appeal
are awarded to the appellant.
Stockslager, J., concurs.
Mr. Chief Justice Quaxles Dissented, anrl stated that, to his mind,
the couelusion of the court was entirely erroneous; that the au-
thorities cited in the majority opinion, with one or two exceptions,
did not sustain such conclusion; and that the correct view of the
14-1 American State Reports, Vol. 101. [Idaho,
question prespnted was shown by the supreme court of Idaho in
the cases of Elmore County v. Alturas County, 4 Idaho, 145, 95 Am.
St. Eep. 53, 37 Pac. 349, and in Fremont County v. Brandon, 6 Idaho,
482, 56 Pac. 264, where it was held that an assessor and collector
who received a warrant for a salary to which he was not entitlod
was a fiducial agent, and received such money in trust, and that
the statute of limitations did not run against the county as to the
money thus received.
THE MAXIM "NTJLLUM TEMPUS OCCUEEIT EEGI."
Scope of Note, 144.
I. nature and Purposes of Statutes of Limitation and the Doctrine
of Laches, 145.
II. Nature and Purposes of the Maxim.
a. Origin and Purpose of the Maxim, 146.
b. As Affecting Claims Against the State or Sovereign, 149.
m. Application of the Maxim.
a. To Governmental Bodies In General.
1. The United States, 151.
2. The State, 152.
3. Counties and School Boards.
A. Counties, 154.
B. School Boards and Districts, 156.
4. Municipal Corporations, 157.
5. Foreign Governments, 158.
b. What Public Bodies Represent the Sovereignty.
1. What is Meant by Sovereignty, 158.
2. Status of Governmental Bodies as Representing the
Sovereignty, 161.
c. Effect of Statutes Expressly Applying Limitations.
1. Necessity for Sovereign to be Expressly Named, 164.
2. Construction of Limitation Statutes Affecting Gov-
ernmental Bodies, 166.
d. Rights of Governmental Body When a Litigant.
1. In General, 169.
2. Where Governmental Body is Merely a Nominal
Plaintiff, 171.
3. Litigation Affecting Public Rights, 173.
4. Litigation Affecting Private Rights or Ordinary
Business Transactions, 179.
e. Actions or Proceedings in Which Application of Maxim
was Sought.
1. In General, 185.
2. Recovery of Property or Funds of the Government,
185.
o. Recovery of Taxes, Assessments, Forfeitures and
Penalties, 185.
4. Collection of Debts in General, 186.
5. Suits on Official or Other Bonds, 186.
6. Rescission of Fraudulent Land Patent, 187.
7. Restraint of Public Nuisance, 187.
8. Escheat Proceedings, 187.
9. Quo Warranto Proceedings, 187.
Scope of Note.
"Nrnny phnsos of the applicntion of tho niaxim, "T-npso nf time does
not bar the riglit of the crown," have been treated in formei mono-
June, 1901.] Bannock County v. Bell. 145
graphic notes in this series of reports. Thus, its application to coun-
ties, towns and cities was considered in the note to Arapahoe Village
V. Albee, 8 Am. St. Eep. 206; the statute of limitations and pre-
scriptive rights as applied to highways, streets and parks were
treated in the note to Schneider v. Hutchinson, 73 Am. St. Eep. 479,
while the prescriptive right to continue a public nuisance was dis-
cussed in Mississippi Mill Co. v. Smith, 30 Am. St. Rep. 557; the sub-
ject of limitations as applied to suits to recover personal judgment
for taxes in the note to Eichards v. Commissioners of Clay Co., 42
Am. St. Eep. 655; fhe defense of laches to suits by taxpaj-ers in
the note to McCord v. Pike, 2 Am. St. Eep. 104; the right to ac-
quire title by adverse possession to lands devoted to a public use,
which forms an important part of the subject which we are about
to consider, was exhaustively treated in the note to Northern Pac.
Ey. Co. V. Fly, 87 Am. St. Eep. 775; and the application of limita-
tions to quo warranto proceedings, which naturally has an impor-
tant bearing on the subject, was considered in the note to McPhail
V. People, 52 Am.' St. Eep. 312. Hence, we shall not consider those
phases of the subject except to advert to cases decided since the time
of such notes, which seem to have an important bearing upon the
phases of the subject treated therein, though we shall attempt to
consider the subject fully in its other aspects.
I. Nature and Purposes of Statutes of Limitation and the Doctrine
of Laches.
It may not be amiss to refer brieflj' to the nature and purposes of
statutes of limitation and the application of the doctrine of laches
before discussing the application of the maxim which forms the sub-
ject of this note. Statutes of limitation Avcre anciently considered
as evidencing a presumption of payment, though now they seem to
be regarded more in the nature of statutes of repose. The weiglit
of authority seems also to consider them as affecting merely the
remedy, and not as extinguishing the right itself: See monographic
note to Menzel v. Ilinton, 95 Am. St. Eep. 65G. The general pur-
poses of such statutes were set forth by Justice Story in the early case
of Bell V. Morrison, 1 Pet. 300, 7 L. ed. 174, in the following lan-
guage: "Tt has' often been matter of regret, in modern times, that,
in the construction of the statute of limitations, the decisions had
not proceeded upon principles better adapted to carry into effect
the real objects of the statute; that, instead of being viewed in an
unfavorable light, as an unjust and discreditable defense, it had re-
ceived such support as would have made it what it was iuteiid(-d to
be, emphatically a statute of repose. It is a wise and beneficial law,
not designed merely to raise a presumption of payment of a just
debt from lapse of time, but to afford security against stale demands,
after the true state of the transactions may have been forgot Ion, or
be infapable of explanation, by reason of the death or removal of
witnesses. It has a manifest tendencv to produce snecdv sottlemeat
Am. St. Kop. Vol. 101 — 10
146 American State Eeports, Vol. 101. [Idaho,
of accounts and to suppress those prejudices which may rise up at
a distance of time, and baflle every honest effort to counteract or
overcome them. Parol evidence may be offered of confessions (a
species of evidence which, it has been often observed, it is hard to
disprove and easy to fabricate), applicable to such remote times as
may leave no means to trace the nature, extent or origin of the
claim, and thus open the way to the most oppressive charges."
The court, in Townsend v. Vandcrwerker, IGO U. S. 186, 16 Sup.
Ct. Kop. 258, 40 L. ed. 383, in discussing the nature of the doctrine
of laches, remarked that: "The question of laches does not depend,
as does the statute of limitation, upon the fact that a certain defi-
nite time has elapsed since the cause of action accrued, but whether,
under all the circumstances of the particular ease, plaintiff is charge-
able with a want of due diligence in failing to institute proceedings
before he did." So, also, in Galliher v. Cadwell, 145 U. S. 372, 12
Sup. Ct. Eop. 873, 36 L. ed. 738, the court, in reviewing some cases
bearing on the subject of laches, said: "The cases are many in which
this defense has been invoked and considered. It is true that by
reason of their differences of fact no one case becomes an exact
precedent for another, yet a uniform principle pervades them all.
They proceed on the assumption that the p<'ii"ty to whom laches is
imputed had knowledge of his rights, and an ample opportunity to
establish them in the proper forum; that by reason of his delay the
adverse jiarty has good reason to believe that the alleged rights are
worthless, or have been abandoned; and that because of the change
in condition or relations during this period of delay, it would be an
injustice to the latter to permit him now to assert them." And
continuing the court summarized the rule, saying: "They all pro-
ceed upon the theory that laches is not like limitation, a mere mat-
ter of time; but principally a question of the inequity of jiermittiug
the claim to be enforced — an inequity foundeil upon some change
in the condition or relations of the property or parties." The same
line of reasoning was also set forth in Xeppach v. Jones, 20 Or. 491,
23 Am. St. Rep. 145, 26 Pac. 569, S49. It is said, however, tiiat ordi-
narily courts of equity adojit the time fixed by the statute of liinita-
ticms for barring claims, but this rule is not inflexiljle: EeynoMs v.
Rnnincr. 126 111. 5S, 9 Am. St. Eep. 523, IS N. E. 334, 1 L. E. A. 327;
Taylor v. Slater, 21 E. I. 106, 41 Atl. 1UI>1. For a further dis.nission
of the general subject of laches sec the monographic note to liell v.
Hudson, 2 Am. St. Eep. 795.
n. Nature and Purposes of the Maxim.
a. Origin and Purpose of the Maxim. — The history an.l general
purpose's of the maxim was set forth in Levasser v. Wasliburii. 11
Gratt. 576. in the following language: "It is a maxim of grcnt an-
tifpiity in the Knglish law that no time runs against tlu^ crown, or,
as it is expressed iu the early writiTs, 'Xullum tenipus occurrit regi':
June, 1901.] Baxxock County v. Bell. 147
Magdalen College Case, 11 Coke, 68-74, 1 Eoll. R. 151; Bracton, lib.
2, c. 5, sec. 7; Britton, c. 18, p. 29; 8 Bacon's Abridgment, 'Prerog-
ative,' E, p. 95; 7 Comyu's Digest, 'Prerog.,' D, 86, p. 90. And it
may be laid down as a safe proposition that no statute of limitations
has been held to apply to suits by the crown, unless there has been
an express provision including it: United States v. Hoar, 2 Mason,
311, Fed. Cas. No. 15,373.
"The reason sometimes assigned why no ladies shall be imputed
to the king is that he is continually busied for the public good and
has not leisure to assert his right within the period limited to stib-
jects: Coke on Littleton, 90; 1 Blackstone's Commentaries, 247. A
better reason is the great public policy of preserving public rights and
property from damage and loss through the negligence of public offi-
cers: Sheffield v. Ratcliffe, Hob. 347; United States v. Hoar, 2 Ma-
son, 311, Fed. Cas. No. 15,373; People v. Gilbert, 18 Johns. 227;
United States v. Kirkpatrick, 9 Wheat. 720-735, 6 L. ed. 199. This
reason certainly is equally, if not more, cogent in a representative
government, where power of the people is delegated to others, and
must be exercised by these if exercised at all; and accordingly the
principle is held to have been transferred to the sovereign people of
this country when they succeeded to the rights of the king'of Great
Britain and formed independent governments within the respective
states: Inhabitants of Stoughton v. Baker, 4 Mass. 522, 3 Am. Dec.
236; People v. Gilbert, 18 Johns. 227; Kemp v. Commonwealth, 1
Hen. & M. (Va.) 85; Nimmo v. Commonwealth, 4 Hen. & M. (Va.)
57, 4 Am. Dec. 488; Chiles v. Calk, 4 Bibb (Ky.), 554; Common-
wealth v. McGowan, 4 Bibb (Ky.), 62, 7 Am. Dec. 737. And though
it has sometimes been called a prerogative right, it is in fact nothing
2nore than an exception or reservation introduced for the public ben-
efit, and equally applicable to all governments: Per Story, J., United
States V. Hoar, 2 Mason, 311, Fed. Cas. No. 15,373. Independently
of the particular reason above referred to, anotlier has been ad-
vanced, founded on the presumed legislative intention. In general,
legislative acts are intended to regulate the acts and rights of cit-
izens; and it is a rule of construction not to embrace the govern-
ment or affect its rights by the general rules of a statute unless it
be expressly and in terms included, or by necessary and unavoidable
implication": Citing United States v. Hoar, 2 Mason, 311, Fed. Cas.
No. 15,373; People v. Gilbert, 18 Johns. 227.
The case of People v. Gilbert, 18 Johns. 227, cited in the above
quotation, set forth the same reasoning as to the purposes of the
maxim. And proceeding on the theory that the maxim was a part of
tlie common law of England, the court saiil: "By tlie tliirty-fifth
article of the state constitution we adopted the common law of Eng-
land, so far as it formed the law of the colony of New York, on the
nineteenth day of April, 1775. After this recognition, the people
of this state, as the supreme power, were entitled to claim the ben-
148 Amekicax State lJi:rouTS, Vol. 101. [Idaho,
ef.t of it in the same mariiior, and to the same extent, that it had
been applied in England. On the ground of expediency and public
convenience, this was necessary; as an attribute of sovereignly, it
was equally important to bo jueserved. By the adoption of the com-
mon law of England in this state the people acquired the right and
privilege now contended for by the counsel for the plaintiff." Justice
Lipscomb, in an early Texas case (State v. Purcell, 16 Tex. 307),
seemed to doubt whether the maxim was ever a part of the common
law. lie said: "The maxim that 'Nullum temjnis occurrit regi ' is
acknowledged to be in common use in the English courts, but that
it is a rule of the common law is not so clear; and it may well be
questioned whether it can claim to have an existence anterior to the
date of the first English statute of limitations, and was then only
true so far as it referred to the time fixed by the statute as a bar to
particular actions. "We think so, because it is very clear that in some
instances time would, at common law, mature and constitute a ri;j;lit
against the crown. Fifty years being the time that would bar a
writ of right, that time of the enjoyment of the actual possession of
the crown lands would be conclusive in favor of the riglit, unless
it is shown that the land could not be granted: See Eecd v. Brook-
man, 6 Eng. Ch. 82, 12 Coke, 5, and Parker v. Baldwin, 11 East, 4^S.
Sec, also, Coolidge v. Learned, 8 Pick. 508. We conclude, therefore,
that the maxim relied on by the attorney general in England amounts
to nothing more than that the statute of limitations of that country
does not run against the crown." Substantially the same reason-
ing was set forth in Stanley v. Scliwalliy, 147 U. S. 515, 13 Sup. Ct.
Ecp. 418, 37 L. ed. 259.
In ^larlin v. Commonwealth, 1 ]^dass. 359, the chief justice, in dis-
cussing the application of the maxim to the case at bar, said: "Tlio
maxim, 'Nullum tompus occurrit regi,' docs not apply; that exteii.ls
only to cases whore rights arc concerned. The qiiestion before us
relates merely to the mode of proceeding in the cause."
The courts frequently say that laches is not imputable to the gov-
ernment: State V. Halter, 149 Ind. 292, 47 N. E. 665; Josslyn v.
Stone, 28 Miss. 753; TIaehnlon v. Commonwealth. 13 Pa. St. 617, 53 Am.
Ucc. 502; State v. Sponaugle, 45 W. Ya. 415, 32 S. E. 2S3, 43 L. K.
A. 727; United States v. Dallas Military Itoad Co., Ill) U. S. (i;;2,
11 Slip. Ct. Hep. 9.bS, 35 L. ed. 5G0; San I'edro etc. Co. v. T'liite.l
States, 14(; r. S. 135, 13 Sup. Ct. Kej). 91, 36 L. ed. 911. In Unite,!
States V. Williams, 5 McLean, 135, l'e,i. Cas. No. 16,721, the oomt,
in ailvancing smi-.i; of the reasons \v!iy laches -was not iniputahie to
the govcrniiii'nt, said: "But laches is not chargeable to the gov-
ernment, 'i'iic statute of limitations does not run against it; aioi
on the same iiriii(/i]iie the lapse of titin; affords no presuiiiin ion of
payment against the state." Aii.l in the recent case of the Est:',;e
of Iiamsay v. l'eo;,h>, 197 HI. 572. 9i) Am. St. ilvy. 1^7, 61 N. l]. 5!9,
the court also stated the reason t'lr jiot iinputing laches to the gov-
June, 1901.] Banxock County v. Bell. 149
eminent. It said: "A proposition of law, asked by the appellant,
was also refused, holding that, by reason of delay in obtaining satis-
faction of the debt sued for, the estate of Eamsay has been released
from liability. All that need be said in reply to this contention is
that, as a general principle, laches is not imputable to the govern-
ment. This maxim is said by Judge Story to be founded upon 'a
great public policy.' 'The government can transact its business only
through its agents; and its fiscal operations are so various, and its
agencies so numerous and scattered, that the utmost vigilance would
not save the public from the most serious losses, if the doctrine of
laches can be applied to its transactions. It would, in effect, work
a repeal of all its securities': Mechem on Public Offices and Officers,
sec. 308; United States v. Kirkpatrick, 9 Wheat. 720, 6 L. ed. 199.
The claim here sued upon is sued in the name of the people of the
state of Illinois for the use of the commissioners of the Southern Illi-
nois Penitentiary, and the money sought to be recovered belongs to
the government of Illinois."
The court in the recent case of In re Ash's Estate, 202 Pa. St. 422,
90 Am. St. Eep. 658, 51 Atl. 1032, seemed to take a different view
as to the effect of laches as a presumption of payment than tliat
stated in United States v. Williams, 5 McLean, 135, Fed. Cas. No.
16,721, referred to in this section. It said: "When the common-
wealth comes into its courts, it is subject, like all other suitors, to
the established rules of evidence. It must meet the burden of proof,
its evidence must be relevant, material, the best attainable, and
must be presented in due order uudcr the regular rules of procedure.
In all such respects it stands upon the same footing as ordinary liti-
gants. Statutes of limitation do not ajix'ly to it, because the maxim
'Nullum tempus occurrit regi, ' though probably in its origin a part
of royal prerogative, has been adopted in our jurisprudence as a mat-
ter of important public policy. But rules of evidence and
legal presumptions are not changed for or against the state
as a suitor. A statute of limitation is a legislative bar to
the right of action, but the presumption of paymout from the lapse
of time is not a bar at all, but simply a rule of evidence, affecting
the burden of proof: Miller v. Williamsport Overseers, 17 Pa. Sup.
Ct. 159. It is of equitable origin, founded on experience of the ordi-
nary course of business and human affV.irs, and adopted by the law
in the interests of repose and the ending of litigation. There is no
good reason why it should not apply to the commonwealth just as
other legal rules and presumptions do."
b. As Affecting Claims Against the State or Sovereign. Althouo-h
statutes of limitation cannot be pleaded against tlie sovereign except
by consent, still the weight of authority is that they may be pleaded
for the benefit of the sovereign. In Stanley v. Schwalby, 147 U. S.
515, 13 Sup. Ct. Kej). 418, 37 L. ed. 259, tlie court aft^r stating the
general rule that the United States was not bound by statutes of
150 Amekicax State l{i:poiris. Vol. 101. [Idaho,
limitation and giving the reasons therefor, said: "But, as observed
by Mr. Justice Strong, delivering the opinion of the court in DoHar
Savings Bank v. United States, 19 Wall. 227, 239, 22 L. ed. 80,
while the king is not bound by any act of parliament unless he be
named therein by special and particular words, he may take the bene-
fit of any particular act though not named. And, he adds, that the
rule thus settled as to the British crown is equally applicable to this
government; and that so much of the royal prerogative as bclonge I
to the king in his capacity of parens patriae or universal trustee
enters as much into our 2)olitical state as it does into the principles
of the British constitution. The general rule is stated in Chitty on
the Law of the Prerogatives of the Crown, 3S2, clearly to be 'that
though the king may avail himself of the provisions of any acts of
parliament, he is not bound by such as do not particularly and ex-
pressly mention him.' 'For it is agreed in all our books that tlie
king shall take benefit of any act, although he be not named': Cal-
vin's Case, 7 Eop. 32a; Magdalen College Case, 11 Eep. 67, 68; The
Queen and Buckberd's Case, 1 Leon. 150; 1 Blackstono's Co!n-
mentaries, 202." And in Cowles v. State, 115 N. C. ISO. 20 S. E.
384, the court said: " Whilo it may be true that the statute of limi-
tations would not be allowed to l)ar the prosecution by the state <>f
its claims against the citizen, except for the provisions of the code,
section 159. it does not follow from this that the state may not
'herself plead that statute and interpose its bar to prevent our
recommen<latory decision against her. It is not for us here to s;iy
whether or not there is a moral obligation resting upon the common-
wealth to pay the petitioner a certain sum of money, but wheth'T
under the law that controls such a controversy wuon waged be-
tween two citizens, the state is indel)ted to this petitioning citizen.
'Considerations of honor or magnanimity can have no bearing in
determining what the law is. The state has rei'('rre<l its riglits to
judicial tribunals to be decided by tlie law. If liy it fiie claim is
barred, they must so declare, though it miglit be just and honorable
for the state to pay it if it has never been paid, notwitlistanding
the bar': Baxter v. Wisconsin, lo Wis. 454. This trilmnal to
which the petitioner now comes to h;ive his alleged rights against
the state ailjudicated, was oj^en to him for that purpose wlien his
light accrued more than ten years ago. The remedy — such as it is—
given him by the constitution an.l the law for alleged wrong iloiie
l.im liy tlie state was tlien exactly what it is now. lie has seen fit
to delay to prosecute his supposed riglit in the only triliunal opi'ii
to him for its adjudication. Because of the length of that delay
the law has barred his claim, and we cannot declare that the state
is legally inde)jtr,l to him."
The decisions of the courts in C, lines v. Hot Springs Co., 39 Ark.
262, Schloss v. Pitkin Co., 1 (nl,,. App. 145, 2S I'ac. 1*5, Small v.
State (Idaho), 76 Pac. 705, Perrv v. Venijillion Parish, 21 La. Ann.
June, 1901.] Bannock County v. Bell. 151
645, Hepburn's Case, 3 Bland, 112, Sturtevant v. Inhabitants of
Pembroke, 130 Mass. 373, Village of Arapahoe v. Albee, 24 Neb.
242, 8 Am. St. Rep. 202, 38 N. W. 739, Capron v. Adams Co., 43
Wis. G13, substantially support the same principles enunciated above.
III. Application of the Maxim,
a. To Governmental Bodies in General.
1. The United States. — In United States v. Nashville etc. Ey. Co.,
118 U. S. 125, 6 Sup. Ct. Eep. 1006, 30 L. ed. 81, the court said:
*'It is settled beyond doubt or controversy — upon the foundation of
the great principle of public policy, applicable to all governments
alike, which forbids that the public interests should be prejudiced
by the negligence of t'he officers or agents to whose care they are
confided — that the United States, asserting rights vested in them as a
sovereign government, are not bound by any statute of limitations,
unless Congress has clearly manifested its intention that they should
be so bound: Lindsey v. Miller, 6 Pet. 666, 8 L. ed. 438; United
States V. Knight, 14 Pet. 301, 315, 10 L. ed. 465; Gibson v. Chouteau,
13 Wall. 921, 20 L. ed. 534;. United States v. Thompson, 98 U. S.
486, 25 L. ed. 194; Fink v. O'Neil, 106 U. S. 272, 281, 1 Sup. Ct. Eep.
325, 27 L. ed. 196. The nature and legal effect of any contract, in-
deed, are not changed by its transfer to the United States. When
the United States, through their lawfully authorized agents, become
the owners of negotiable paper, they are obliged to give the same
Eotice to charge an indorsor as would be required of a private liolder:
United States v. Barker, 4 Wash. C. C. 464, Fed. Cas. No. 14,520, 12
Wheat. 559, 6 L. ed. 728; United States v. Bank of Metropolis, 15
Pet. 377, 392, 393, 10 L. ed. 774; Cooke v. United States, 91 U. S.
389, 396, 398, 23 L. ed. 237. They take such paper subject to all the
equities existing against the person from whom they purchase at
the time when they acquire their title; and cannot, therefore, main-
tain an action upon it, if at that time all right of action of that
person was extinguished, or was barred by the statute of limitations:
United States v. Buford, 3 Pet. 12, 30, 7 L. ed. 585; The King v.
Morrall, 6 Price, 24. But if the bar of the statute is not complete
when the United States become the owners and holders of the paper,
it appears to us, notwithstanding the dictum of Cowen, J., in United
States V. White, 2 Hill (N. Y.), 59, 61, 37 Am. Dec. 374, impossible
to hold that the statute could afterward run against the United
States": citing Lambert v. Taylor, 4 Barn. & C. 138, 6 D. & E. 188.
The federal and state courts seem to uniformly hold that statutes
of limitation do not run against the United States government:
Wright V. Swan, 6 Port. 84; Swann v. Limlsoy. 70 Ala. 507; ^fcNamee
V. United States, 11 Ark. 148; Booth v. Ignited States. 1] Gill iS: .7.
373; United States v. City of Alexandria, 19 Fed, 609; Lindsey v.
Miller, 6 Pet. 066, 8 L. ed. 53S.
153 American State Reports, Vol. 101. [Idaho,
It has somotimps beon sought to invoke the statute of limitations
of a state as a bar to an notion in which the United States govern-
ment is interested as plaintiff, but the courts hold that such a state
statute does not run against clnims of the United States: United
States V. Spiel, 8 Fed. 143, 3 McCrnrv, 107; United States v. P.olk-
rapp, 73 Fed. 19; Unite 1 States v. Nashville etc. Ry., IIS T'. S.
120, G Sup. Ct. Eep. lOOG, 30 L. ed. 81; United States v. Thompson,
98 U. S. 186, 25 L. ed. 194. In Gibson v. Chouteau, 13 Wall. 9;>. 20
L. ed. 534, Justice Field said: "It is a matter of common knowledge
that statutes of limitation do not run against the state. That no
laches can be imputed to the king, and that no time can bar his
rights, was the maxim of the conii^on law, and was founded on the
principle of public policy, that as he was occupied with the cares
of government he ought not tu suffer from the negligence of his
officers and servants. The principle is applicable to all govern-
ments, which must necessarily act through numerous agents, and is
essential to a preservation of the interests and property of the public.
It is upon this principle that in this country the statutes of a state
prescribing periods within which rights must be prosecuted are not
held to embrace the state itself, unless it is expressly designated or
the mischiefs to be remedied are of such a nature that it must neces-
sarily be included. As legislation of a state can only apph- to per-
sons and things over which the state has jurisdiction, the United
states are also necessarily excluded from the operation of such stat-
utes."
And it is also held that the defense of laches cannot be pleaded
against claims of the United States: San Pedro etc. Co. v. b'nited
States, 1-16 U. S. 135, 13 Sup. Ct. Eep. 9-i, 36 L. ed. 911; United
States V. Dallas Military Eoad Co., 110 U. S. 632, 11 Sup. Ct. Eep.
98^, 35 L. ed. 560; United States v. Kirlq.atrick, 9 Wheat. 720, 6
L. ed. 199; Dox v. I'ostninstcr General, 1 I'et. 31S, 7 L. ed. 160.
2. The State. — It seems to be universally held tliat statutes of
limitation do not run against the state wlien suing in its sovereign
capacity unless such statutes expressly include the state in their
operation: Swauu v. Lindsey, 70 Ala. 507; Moody v. i'leu'ing, 4 Ga.
115 48 Am. Dec. 210; Comuiouwealth v. McGowan, 4 liibb, 62, 7
Am. Dec. 7i)7; State v. llaiter, 149 Ind. 292, 47 X. E. 6^35; I'arjailee
V. Mc.Sutt, 1 Smedes & M. 179; Parks v. State, 7 Mo. 191; County
of St. <Jharles v. Powell, 22 Mo. 525, 66 Am. Dec. 637; Blazier v.
Johnson, 11 Neb. 404, 9 N. W. 543; I'eople v. Van Eenssi-laer, 8
Barb. l>-9; People v. Herkimer, 4 Cow. 345, 15 Am. Dec. 37;); Cin-
cinnati V. First Presbyterian Church, 8 Ohio, 29S, 32 x\m. Dec. 718;
Hoey V. Furman, 1 Pa. St. 295, 44 Am. Dec. 129; State v, Arledge,
2 Bail. 401, 23 Am. Dec. 145; Wilson v. Hudson, 8 Yerg. 39s ; Ximnia
V. Commonwealth, 4 Ken. & M. (Va.) 57, 4 Am. Dec. 4SS; Frenrh v.
Commonwealth, 5 Leigh, 512, 27 Am. Dec. 613; State v. Sponaugle, 45
W. Ya. 415, 32 S. E. 253, 43 L. E. A. 727; Gibson v. Chouteau, 13
June, 1901,] Baxxock Couxty v. Bell. 153
Wall. 92, 20 L. ed. 534. And it also seems that where the state is
really interested in the litigation it is immaterial that some one
else may have an incidental interesgt with the state. The rule in that
respect was stated in Glover v. "Wilson, 6 Pa. St. 293, wherein it
■was said: "It is settled that on grounds of public policy, statutes
of limitation do not extend to the commonwealth, nor to suits in the
name of some person for her use; for it is not the form of the action
which is to govern the operation of the statute: Commonwealth v,
Baldwin, 1 Watts, 54, 26 Am. Dec. 33; Ramsey's Appeal, 4 Watts,
71; McKeehan v. Commonwealth, 3 Pa. St. 151. Nor does it, I con-
ceive, make any difference that another party may also be interested
in the security taken in part for the use of the state; for this can-
not affect her rights, which are always paramount to private con-
siderations. If the mingling of her interests with those of another
person, natural or artificial, may work an injury to the party who
assumes the burden of securing them, it is either a necessary incident
to his position, or a folly in him to assume it unnecessarily. In a case
like the present, perhaps the law does not contemplate that a col-
lector of taxes should give distinct bonds to secure the payment,
respectively, of the state and county tax, since both are, in the first
instance, to be paid into the county treasury, and therefore an un-
foreseen consequence may be the result, or perhaps by proper plead-
ing the defendant might compel the plaintiff in a suit on such bond
to set out how much remained due of the amount levied for county
purposes, and how much to the state, so as to enable him to plead
the statute effectively as against a portion of the claim. But this
has not been done here. The amount proceeded for and defendeil
against is a gross amount, part of which, at least, belongs to the
commonwealth. The immunities which pertain to her must, therefore,
be permitted to cover the whole sum, rather than the public interest
should be subjected to detriment, which might affect her pecuniary
interests very seriously."
And in Haehnlen v. Commonwealth, 13 Pa. St. 617, 53 Am. Dec.
502, it was held that the right of the commonwealth cannot be lost
by the laches of its agents. So, also, in Josselyn v. Stone, 2S Miss.
753, it was said that laches is not imputable to the state. And in
State V. Sponaugle, 45 W. Va. 431, 32 S. E. 2S3, the court in dis-
cussing the general subject said: "But no statute applies laches to
the state and the common-law rule says that it does not apply to
it." A distinction, however, seems to be drawn where long ac-
quiescence in a right is shown. Thus, in the recent case of Franzini
v. Layland (Wis.), 97 N. W. 499, which was a case involving the
boundary line between the states of Wisconsin and Minnesota, the
court said: "Acquiescence, for a long period of time is evichMitiary
of the right involved between sovereignties as well as between
individuals." Similar holdings were made in cases involving bound-
aries between states in Indiana v. Kentucky, 136 U. S. 479, 10 Sup.
154 American State Reports, Vol. 101, [Idaho,
Ct. Rep. 1051, 34 L. ed. 329, and Rhode Island v. Massachusetts, 4
How. 591, 11 L. ed. 1116.
It would seem to us, however, that the cases just cited involve
questions of burden of proof rather than questions of laches.
3. Counties and School Boards.
A. Counties. — At common law counties could not be sued: Monroe
County V. Flynt, 80 Ga. 489, 6 S. E. 173; Hitch v. Edgecombe County
Coninirs., 132 N. C. 573, 44 S. E. 30: Taylor v. Salt Lake Co., 2 Utah,
405. In Prichard v. Commissioners, 126 N. C 912, 78 Am. St. Rep.
679, 36 S. E. 353, it was said that "counties are not, in a strictly
legal sense, municipal corporations like cities and towns; they are
rather instrumentalities of government, and are given corporate
powers to execute tneir purposes, and they are not liable for damages
in the absence of statutorj' provisions giving a right of action against
them." And in Johnson v. Llano County, 15 Tex. Civ. 421, 39 S. W.
995, the court, in speaking of the general nature of counties, referred
to the Texas constitutional provisions which recognized them as
legal subdivisions of the state and classified them as municipal cor-
porations, and then said: "But in fact, accurately speaking, counties
are not 'municipal corporations,' though that phrase is sometimes
tised in a broad sense that will include them: Dillon on Municipal
Corporations, sees. 19, 20. Neither do counties, in and of themselves,
and independent of the rights granted to them by fhe state, possess
any of the attributes or functions of sovereignty; and hence, thoy
are not, in the true sense of sovereignty, any part of the state.
The state has delegated to them, as it has to cities and towns, cer-
tain powers and functions that belong to this state; but it docs
not follow that because such corporations are intrusted with the
exercise of such powers and functions, they are, in all respects, ele-
vated to the dignitv of sovereignty." In Coleman v. Thurmond, 56
Tex. 520, the court held that the statute of limitations would not run
against the county in a suit relative to land dedicated to a county
for a public highway. This case was, however, explained in Houstou
etc. Ivy. Co. V. Travis (Jo., 62 Tex. 16, as having been decided on
the theory "th:it it was the state at large that held the actual, real,
beneficial interest in streets as public highways, and that the county,
us a political subilivision, had but a trusteeship in them for the use
and benefit of the state at large." And in the same case, the court
in discussing the apjilication of tho maxim "Nullum tempus occurrit
regi," said: " Tlie principle upon which the extension of the bene-
fiis of the maxim is made seems to rest upon the idea that the
statute will not run where the sovereignty is substantially interested
in, and vested with, the right and ownership of the subject matter
iu litigation, and which is sought to be subjected to tho operation
of the statutes of limitatiou. "
June, 1901.] Baxxock County v. Bell. 155
In County of St. Charles v. Powell, 22 Mo. 525, 66 Am. Dec. 637,
the county sued on a promissory note which recited that it was given
for money borrowed from the road and canal fund of the county.
The court, after discussing the history of the maxim, the subject of
this note, said: "The immunity, however, it seems was even at com-
mon law an attribute of sovereignty only, and did not belong to the
municipal corporations or other local authorities established to man-
age the affairs of the political subdivisions of the state. It was so
expressly held in the Lessee of the City of Cincinnati v. Frst Presby-
terian Church, 8 Ohio, 309, 32 Am. Dec. 718, and in Armstrong v.
Dalton, 4 Dev. (N. C.) 569; and we are not aware of any case to the
contrary. In Marion County v, Moffett, 15 Mo. 604, the omission of
a public functionary to do an act required by law for the security
■of the public interest, was not allowed to operate as a release of the
security; but the decision had nothing to do with the application of
the statute of limitations to cases of that character. The money
sued here for belonged to the county and not to the state at large.
It was vested in the county by a legislative donation — impressed, it
is true, with a trust for local improvements; but yet it belonged ex-
clusively to the county, although for local and not for general pur-
poses."
In Hartman v. Hunter, 56 Ohio St. 175, 46 N. E. 577, it was held
that a civil action brought by the treasurer of a county to enforce
assessments for the construction of township ditches was barred
by the statutes of limitation. It was contended, in argument, that
although the liability was within the terms of the statute of limita-
tion that it was not affected on account of the public character of the
demand. The court reviewed the earlier Ohio cases on the subject
and then said: "All attempts to extend the exemption to others than
the general and state governments have failed. The terms of the
statute except none from its operation and the exemption is a pre-
rogative. Being a privilege of sovereignty, as in England it is the
king's plea, so here it is the plea of the sovereign, to be made by
it or in its behalf. This view of the subject docs not admit of
further question in this state." So, also, in Perry County v. Selma
■etc. R. Co., 58 Ala. 569, which was a proceeding for the rocovory of
certain taxes, the court, though holding that there was no statute
of limitation applicable to the case at bar, said: "A county suing
or being sued is not exempt from the operation of the statutes of
limitation which cover the action sought to be enforced. Tliey are
rot privileged from suit, under the principle that 'time does not run
against the sovereignty.' They are not the state." In Board of
Commissioners of Wayne Co. v. Helton, 79 Miss. 122, 29 South. 820,
"Which was a suit to recover on a promissory note given to tlie county
for money borrowed from the school fund, the court held that tlie
constitutional provision of 1890, providing that "statutes of limita-
tions in civil causes shall not run agninst the state or any subdivi-
loG American State Reports, Vol. 101. [Idaho,
sion or municipnl corporntion thereof," stopped the rimning of tho
statute against counties on pending contracts when the bar was not
ooni]>lcte. So, also, in Ward v. Marion County (on rehearing), 26
Tex. Civ. 361, 62 S. W. 557. 63 S. W. 155, which was a suit upon
a tax collector's bond for sums for which he issued receipts without
receiving money therefor, the court held that his acts amounted to
a misconduct toward which the bond applied and that limitations had
run against the suit; the court saying: "The statute of limitations
runs against counties, except when the legislature has otherwise pro-
vided." The statute of limitations was also applied in Boaril of
Commissionors v. Van Slyck, 52 Kan. 622, 35 Pac. 299, to a suit upon
the official bond of a Cdunty clerk for unaccounted fees. In San
Luis Ol.ispo Co. V. King. 69 Cal. 531, 11 Pac. 178, which was an ac-
tion t'> recover fees collected and received by the defendant as
county recorder, the court did not seem to question the application
of the statute of liii;itation under proper circumstances, but seemed
to bnse its decision upon the fact that no demand had been made for
the fees. It said: "As the defendant received the moneys collected
by him and held the same in trust for the county, the action is not
barred. Xo dcinaiid was made until th*^ day before suit." In
County of San Luis Obispo v. Farnum, lUS Cal. 567, 41 Pac. 447, the
actiiin was on the bond of the county auditor to recover license taxes
iceeived by him, Avhich were not turned over to the cminty treasurer.
The court held that he did not receive the money in his oflii'ia!
lapacity, and hence, that there was no liability on the bond and tliat
an action to recover for money had and received was barred by tho
statute. It seems that tlic statutes of limitation have been ex-
pressly extended to cases uf the sort just cited.
The principal ease seems to be based u]ion tho ground that tho
statutes of limitations of Idaho are cxpr(>ssly made applicable to
the state and that they are tliereforc applicable to the counties of
file stale. It seems to us that tliere might be some circumstances
'.nder wiiieh a statute of limitation, though mad.' to apply to a
county as to matters of mere private right or contractual obliga-
tions would not be applicable where the subject matter of the liti-
Lration was in respect to public rights or as to property held by
the county in trust for the public good. The distinctiiuis which
are drawn by the <'ourt3 in matters of that kind will be treated
Liter on in this note.
B. School Boards and Districts.— In State v. School District, 30
Xel.. 5-C, 27 Am. yt. Eep. 420, 46 X. W. 6i;;, which was a pro-
ceeding l)v mandamus to comp(d a county school board to report the
indebtedness of the scdiool district an<l the rate and amount of taxes
required to pay the same, the court hebl that the proceeding was
barred by the statute of limitations. In making its ruling the
court said: ''In the case of May v. School District, 22 Xeb. ijd.i, 3
Am. St. Kcp. Lijii, ;M X. W. 377, this rule was m.aiiitaiued. The
June, IDOL] Baxxock Couxty r. Blll. 157
plaintiff sued on a warrant for seventy-five dollars, dated f^eptivn-
ber 9, 1879, payable eighteen months after date. More than five
years had elapsed after the maturity of the warrant before suit was
commenced. The statute of limitations was applied, and it was
held that the maxim, 'Lapse of time is no bar to the rights of
the sovereign,' applies only to a sovereign state, and not to muni-
cipal corporations deriving their powers from the state, althor.^^h
their powers, in a limited sense, are governmental; and thus it
appears that the statute runs for and against cities, towns, and
school districts in the same manner that it does for and against
individuals. Arguments need not be prolonged in support of this
proposition. It has been considered and settled"; citing City of
Cincinnati v. Evans, 5 Ohio St. 594; City of Cincinnati v. First
Presbyterian Church, 8 Ohio, 298, 32 Am. Dec. 718; Lane v. Ken-
nedy, 13 Ohio St. 42; St. Charles Tp. School Directors v. Goerges,
50 Mo. 194; Kennebunkport v. Smith, 22 Me. 445; Clements v. An-
derson, 46 Miss. 581; Evans v. Erie County, 66 Pa. St. 225; St.
Charles County v. Powell, 22 Mo. 525, 66 Am. Dec. 637; Callaway
County V. Nolley, 31 Mo. 393; Abernathy v. Dennis, 49 Mo. 469;
Pimcntal v, San Francisco, 21 Cal. 351; Clark v. Iowa City, 20 Wall.
5S3; De Cordova v. Galveston, 4 Tex. 470; Underhill v. Trustees
etc., 17 Cal. 172; Baker v. Johnson County, 33 Iowa, 151; 2 Dillon
on Municipal Corporations, sec. 668. The status of school districts
as state or municipal organizations was discussed in Attorney Gen-
eral v. Lowrey, 131 Mich. 639, 92 N. W. 289, in both the mn.jority
and dissenting opinions.
4. Municipal Corporations. — The authorities do not seem to bo
harmonious on the question whether municipal corporations are af-
fected by statutes of limitations under all circumstances. Of course,
the matter is regulated by statute to a large extent. The courts
often say, in a general way, that statutes of limitations run a.crainst
municipal corporations in the same mannor as against ini]ivi<1uals.
City of Alton v. Illinois etc. Co., 12 111. 38, 52 Am. Dec. 479; City
of Pella V. Scholte, 24 Iowa, 283, 95 Am. Dec. 729; Clements v.
Anderson, 46 Miss. 581; St. Charles Tp. School Directors v. Goerges,
50 Mo. 196; Knight v. Heaton, 22 Vt. 480. Other courts draw a
distinction and state that statutes of limitations run against muni-
cipal corporations except as to property devoted to a public use
or held upon a public trust, and except as to contracts of a publii'
nature: City of Ft. Smith v. McKibben, 41 Ark. 49, 48 Am. Kep.
19; Logan County v. City of Lincoln, 81 111. 158; Bedford v. Wi!-
lard, 133 Ind. 562, 36 Am. St. Eep. 563, 33 X. E. 3GS; Ealston v.
Weston, 46 W. Va. 544, 76 Am. St. Eep. 834, 33 S. E. 326. But this
distinction has also been repudiated as unsound: See City of riu-
ciunati v. First Presbyterian Church, 8 Ohio, 298, 32 Am. Dei'. 7 IS.
The rule and reasons for the rule as to a distinction v.iiorc the liti-
gatiun involves rights of the whole public, and where the litigation
158 Amkkicax State Heports, Vol, 101. [Idaho,.
involves merely municipal rights will be considered more fully in a
subsequent section.
5. Foreign Governments. — We have observed only one case in
vrhich the application of the maxim to a foreign government suing
as plaintiff in an American court was urged. Although the court
refused to give a decision as to whether the foreign government
could avail itself of the maxim, still the ease is interesting as
showing, at least, a dictum upon the subject. In French Republic
V. Saratoga Vichy Spring Co., 191 U. S. 427, 24 Sup. Ct. Eep. 145,
the French republic as owner and a private corporation of France,
as the lessee of the springs of Vichy, France, brought suit against
the Saratoga company for an alleged unlawful use of the word
"Vichy" in describing defendant's mineral waters, the plaintiffs
claiming an exclusive right to the use of the word. The United
States supreme court in discussing the case said: "It is said, however,
that the doctrine of laches has no application to the neglect of the
government to pursue trespassers upon its rights, and that the French
republic is entitled to the benefit of that rule. It is at least open
to doubt whether the maxim 'nullum tempus, ' applicable to our
own government, can be invoked in behalf of a foreign government
suing in our courts. The doctrine is one of public policy, and is
based upon the assumption that the officers of the government may
be so busily engaged in the ordinary affairs of state as to neglect
a vindication of its interests in the courts. Whether this exemption
can be set up by a foreign government in the prosecution of suits
against our own citizens — in other words, whether the latter are
not entitled to the benefit of the ordinary defenses at law, is a
cpiestion which does not necessarily .arise in this case, and as to
which we are not called upon to express an ojnnion.
"However, this may be, it is clear that the rule of nullum tempus
cannot be invoked in this case. While the French republic is
nominally the plaintifl", its interest in the litigation is little, if
anything, more than nominal." The court then showed that tlio
French republic had leased the springs over fifty years ago and
that the lease would not expire for thirty years to come, and then
continuing the court said: "In suc'ii cases, either where the gov-
crnincut is suing for the use and benefit of an individual, or for
tlio ]iroseciition of a private and proprietary, instead of a puldic
or governmental riglit. it is clear that it is not entitled to tlie ox-
em[>tifin of nullinn tempus, and tliat the ordinary rule of laches
applies iu fuU force"; citing numerous authorities.
b. What Public Bodies Represent the Sovereignty.
1. What is Meant by Sovereignty, — Sovereignty has been defined
as that putilie authority whicji commands in civil society, and or-
ders and liircits what ea<-h citizen is to perform to oljtain the end
of its institution: Chauecly v, Bailey, 37 Ga, 532, 95 Am, Dec, 350,
June, 1901.] Bannock County v. Bell. 159
citing Vattel as its authority. In the Georgia case, just cited, it
was said, in discussing the sovereign powers of the federal and
state governments, that: "The several states by their voluntary
executed compact expressly stipulated that the federal government
which they created, its officers and agents, should exercise certain
enumerated attributes of sovereignty in their joint names, and sol-
emnly stipulated that they would not, either expressly or by neces-
sary implication. The powers granted to the federal government
by the states, as expressed in the constitution were intended to be
a consolidation of power in that government, to that extent, in-
tended to vest in that government the supreme, irresistible, absolute,
uncontrolled authority over the people of the respective states,
so as to act efficiently and directly upon them as individuals, and
as a unit in the execution of those granted powers. It must be
conceded, therefore, that the federal government, to the extent of
the powers granted to it by the states in the constitution, is, in the
language of Washington, a consolidated government, and that the
primary object was a consolidation of the Union, at least to that
extent: See Washington's Letter Transmitting the Federal Con-
stitution to the Continental Congress. The powers not granted to
the government of the United States by the constitution, nor pro-
hibited by it to the states, are expressly reserved to the states, or
to the people thereof; and a state, in the language of the supreme
court in the case of City of New York v. Miln, 11 Pet. 139, 9
L. ed. 648, has the same undeniable and unlimited jurisdiction over
all persons and things within its territorial jurisdiction as any for-
eign nation, where that jurisdiction is not surrendered or restrained
by the constitution of the United States. Thus, it is apparent that
whatever powers were granted by the voluntary executed compact
of the sovereign states to the federal government, to be exercised
in their joint names for the preservation and consolidation of the
Union as therein expressed, binding upon them to that extent and
no more. 'In England, the sovereign power, quoad hoc, is vested
in the person of the king. Whatever contracts, therefore, lie en-
gages in, no other person in the kingdom can legally resist or an-
nul': Blackstone's Commentaries, 257. The sovereign power of
the state of Georgia at the time of the adoption and ratification
of the federal constitution was vested in the people of the state
as a distinct and separate political organization. Whatever, tliere-
fore, thoy in their sovereign capacity voluntarily bound themselves
to do or not to do by the terms and stipulations contained in the
constitution of the United States, they could not afterward lof;aIly
delay, resist or annul by separate state secession from the Union.
They were inviolably bound in law by their solemn executed com-
pact; for we have already shown that their declared object was to
form a more perfect union of the states, which union was then
already declared to be perpetual."
IGO American State riEPoiiTS, Vol. 101. [Idaho,
In .an'carly c.isc in Maryland (Bootli etc. v. United States, 11 Gill &
J. 377), the court in discussing whether the statute of limitations
of the state applied to the United States, said: "All bonds, etc.,
taken in the name of the king, etc., are expressly excepted; and
the state succeeding to the rights of sovereignty, stood, at the
Declaration of Independence, in the place of the king, and being
thus expressly excepted, -when she surrendered certain powers of sov-
ereignty to the United States, the exception must be considered as
applying to such newly created government, thus clothed with por-
tions of her sovereign power. To all claims springing out of the
exercise of every sovereign power by the state, and which were
due to the state, by express legislation, the doctrine of nullum
tompus, etc., was applied, and when portions of this sovereign power
have lieon conferred upon another government, and claims spring
out of the legitimate exercise of such powers, such newly created
government, to the extent of the granted power, must and ought to
be considered as standing in the place and stead of the state so
granting them; and if the state would have been excepted from
the operation of the statute, upon all claims she might have, from
the exercise of any power which now has been granted away, tlie
T'nited States, in the exercise of them, is but the substitute of Ihe
state, and is entitled to the benefit of the exception likewise. Tliis
interpretation of the act does not enlarge the exception, for it
is, as before, contineil to the sovereign power, which is now by our
constitutions parceled out to two governments."
In Ealston v. Weston, 4C W. Va. 544, 76 Am. St. Eep. S.34, 33
S. E. 32G, Avhicli is prolialtly one of the latest cases dealing ex-
haustively witli this partii'ular subject, the court said: "The word
'state' is generally used to denote tlirec difTerent things, and oft>'ii
witlior.t discrimination: 1. The territory witliin its .iurisdiction; 2.
The gDvcrnment or governmental agencies apjiointed to carry out
tlie will of the people; and 3. Tlie people in their sovereign capacity.
Tlie state is not the sovereign in this country. The people v.dio
make it are sovereign, and all its oflicers are Init tlieir servards.
So statutes of limitations, which are made to apjdy to tlie st;!te,
do not apply to tlie people or their public right>5. lUit they only
ai'ply til the state in th.c same cases that they apiily to individuals.
The entry upon or recovery of lands h"]d for sale, siiits on Imiids,
contra'-ts. eviijences of debt, or for torts — all these, though tlie stale
is a ji;;rty, are sidiject to bar. As to all such things there is no
reasun why the slate shonhl have any longer time than an in-
<lividual. Sm-h is imt tlie case with the right of taxation, the right
of emii.ent domain, tiie ri^lit t't use the public liigiiway:^, and other
rights, %\hi'di jiertain only to the sovereignty of the peojile. Xotie
of these can e\-iT be lost by the iie;j;'igence of the jiuKlic servants,
who have no j'ower f)f di-posal ovi'r Ihem in aiiv way. excep; m;-
cordiiig to the express will of the ]ieople. It would be a slrange
June, 1901.] Banxock County v. Bell. IGl
thing for an individual to plead the statute in bar of the right
of eminent domain, which is said to be the right of the people to
take private property for public use. The right to keep it for
public use should be as extensive as the right to take it; for one
would be useless without the other. The former is said to be an
attribute of sovereignty, and why not the latter?" And then con-
tinuing the court further said: "In all cases where the sovereign
rights of the state are referred to, the state is spoken of as repre-
sentative of the people, and not of the territory or the govern-
ment, or its agencies. The state, in its government capacity, has
no right to alien, or authorize the alienation of, the public high-
ways, except for the public good; but it may provide subagencies to
control, make, repair and otherwise exercise complete supervision
over such highways, and make such agencies responsible for the
good condition thereof, through their servants." And later in the
opinion in answering the arguments of the trial judge, the court
said: "Judge Johnson invests the state with sovereignty which
belongs alone to the people, and of which the state is the mere
trustee, except when the word is used in a broad sense, to designate
the people, and not governmental agencies. The people have the power
to impose the duty of protecting their sovereign rights on any pub-
lic agency or individual officer or person they may see fit and proper,
and the fact that they do impose such duty on trustees or agents
cannot possibly destroy such rights without their consent. And it
is the duty of every man, woman and child in this state who enjoys
the protection of the laws of the land, including the use of its high-
ways, to aid in preserving such public sovereign rights intact, in-
stead of seeking to overthrow and destroy them. The king of Eng-
land intrusted his highways to supervisors and local authorities,
yet it never entered even the imagination of his subjects that by
reason thereof they could acquire rights against him in his high-
ways by means of nuisances maintained therein for any length of
time. The people of this country succeeded to all his rights, and
more than he are compelled to transact their business through local
agencies, and there is no more reason that they, by so doing, should
lose their rights than he. Their sovereignty is far more pervading
than his, for it has representation of pure blood in every house-
hold throughout the length and breadth of their domain. The over-
sight in the learned judge's opinion, and the numerous decisions
on which he places his reliance, is his failure to distinguish the
municipality in its private, ministerial and local governmental capa-
cities from the municipality in its higher governmental as the agent
of the public, charged with the duty of preserving the sovereign
rights of the people."
2. Status of Governmental Bodies as Representing the Sover-
eignty.— From the preceding section, it appears to us that the United
States and the state ordinarily represent the sovereignty, at least,
Am. St. Rep. Vol. 101—11
162 American State Keports, Vol. 101. [Idaho,
when exercising the attributes of sovereignty, but it does not seem
to us that it necessarily follows that all acts by the United States
or the state are sovereign in character.
In Carr v. State, 127 Tnd. 204, 22 Am. St. Eep. 624, 26 N. E.
778, 11 L. E. A. 370, which was a suit over a certificate of indebt-
edness issued by the state, the court said: "As there is a perfect
contract, the state is bound to perform it according to its legal
tenor and effect, and to redeem the pledge it has declared to be
irrevocable. In entering into the contract it laid aside its attri-
butes as a sovereign, and bound itself, substantially, as one of its
citizens does when he enters into a contract. Its contracts are in-
terpreted as the contracts of individuals are, and the law which
measures individual rights and responsibilities measures, with few
exceptions, those of a state, whenever it enters into an ordinary busi-
ness contract: Ilartman v. Greenhow, 102 U. S. 672, 26 L. ed. 271;
Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. Eep. 903, 962, 29
L. ed. 185; Keith v. Clark, 97 U. S. 454, 24 L. ed. 1071; Murray v.
Charleston, 96 U. S. 432, 24 L. ed. 760; Gray v. State, 72 Ind. 567;
State V. Cardoza, 8 S. C. 71, 2S Am. Eep. 275; People v. Canal Com-
missioners, 5 Dcnio, 401; Georgia etc. Co. v. Nelms, 71 Ga. 301;
Lowry v. Francis, 2 Yerg. 534; Grogan v. San Francisco, 18 Cal.
590. The principle that a state, in entering into a contract, binds
itself substantially as an individual does under similar circum-
stances necessarily carries with it the inseparable and subsidiary
rule that it abrogates the power to annul or impair its own con-
tract."
The status of counties was discussed in a previous section; hence
we will not add much to what was there said in regard to them.
The exact status of counties does not appear to be absolutely es-
tablished. In Commonwealth v. Price, 22 Pa. St. 211, 60 Am. Dec.
79, it was said: "The fact that a county has certain rights recog-
nized in law as its own does not sever it as a body from the state;
but only distinguishes it in the state, and as a part of it, and
allows local officers to enforce, in the name of the county, certain
riglits and duties which otherwise would have had to be enforced
in the name of the state. The institution of local divisions is merely
a means of government, and counties and their officers arc but j)art9
of the machinery that constitute the public system. This form of
administration is no more a division of the government than is the
allotment of particular localities, or particular functions, to wliat
are usually called state officers." In Fry v. County of Albcniarlo,
S6 Ya. 195. 19 Am. St. Kop. 879, 9 8. E. 1004, the court in dis-
cussing the difference between counties and municipal corporations,
said: "As was said by a learned .judge in a ease not now modern:
'Counties are at most but local organizations, which for the pur-
poses of civil administration are invested with a few functions, char-
acteristic of a euqjorate existence. Tliey are local subdivisions
June, 1901.] Bannock County v. Bell. 163
of a state, created by the sovereign power of the state, of its own
sovereign will, without the particular solicitation, consent, or con-
current action of the people who inhabit them': Hamilton County
V, Mighels, 7 Ohio St. 109.
"A municipal corporation proper is created mainly for the in-
terest, advantage, and convenience of its locality and its people.
A county organization is created almost exclusively with a view
to the policy of the state at large, for purposes of political or-
ganization, and civil administration in matters of finance, of edu-
cation, of provision for the poor, of military organization, of the
means of travel, and of transport, and especially for the general
administration of justice. With scarcely an exception, all the pow-
ers and functions of the countj^ organization have a direct and ex-
clusive reference to the general policy of the state, and are in
fact but a branch of the general administration of that policy."
Substantially the same characterization was made of parishes,
which corresponds to counties, in West Carroll v. Gaddis, 34 La.
Ann. 928, the language of which was quoted and adopted in Jeffer-
son County V. Grafton, 74 Miss. 435, 60 Am. St. Kep. 516, 21 South.
247, 36 L. E. A. 798. In Bell v. Commissioners, 127 N. C. 91, 37
S. E. 136, it was held that counties are not, in a strictly legal
sense, municipal corporations, like cities and towns, but that they
are rather instrumentalities of government, and are given corpo-
rate powers for the execution of their purpose.
As bearing upon the general nature of counties, see, also. People
V. McFadden, 81 Cal. 489, 15 Am, St. Eep. 66, 22 Pac. 851; Louis-
ville etc. E. Co. v. County Court, 1 Sneed, 637, 62 Am. Dec. 424;
Coles V. County of Madison, Breese (LI.), 154, 12 Am. Dec. 161;
County of Chester v. Brower, 117 Pa. St. 647, 2 Am. St. Eep. 713,
12 Atl. 577; monographic note to Leake v. Lacey, 51 Am. St. Eep.
119.
In Adams v. Illinois Central E. Co., 71 Miss. 752, 15 South. 640,
it was held that the Yazoo-Mississippi Delta Levee District, created
by statute and recognized by the constitution, was a subdivision
of the state against which the general statutes of limitation did
not run. In McClanahan v. Western Lunatic Asylum, 88 Va. 466,
13 S. E. 977, the statute of limitations was set up against a claim
by a public asylum for board of an inmate and the asylum con-
tended that the maxim "Xullum tempus occurrit regi" applied as
to its transactions. The court, in holding that limitations applied,
said: "We are of opinion that this contention is not sound, and
that the error assigned is well taken. The Western Lunatic Asy-
lum is a corporation — an organized legal entity — a personalty in
law with power to sue and be sued, to plead and to be impleaded;
and being endowed with this capacity, it is thereby entitled
to and amenable to all legal defeases which pertain to private
IGi American State RErorrs, Vol. 101. [Idaho,
persons. In the case of the Bank of the ITnited States v. Planters'
Bank of Georgia, 9 Wheat. 904, 6 L. ed. 244, Marshall, C. J.,
says: 'The state does not, by becoming a corporation, identify
itself with the corporation. The Planters' Bank of Georgia is not
the state of Georgia, although the state holds an interest in it.
.... The state of Georgia, by giving to the bank the capacity to
sue and be sued, voluntarily strips itself of its sovereign character,
80 far as respects the transactions of the bank, and waives all the
privileges of that character. As a member of a corporation, a gov-
ernment never exercises its sovereignty. It acts merely as a cor-
porator and exercises no other power in the management of the
corporation than one expressly given by the incorporating act.'
'So with respect to the Bank of the United States. Suits brought
by or against it are not understood to be brought by or against the
United States' ": See, also, Osborn v. Bank of United States, 9
Wheat. 738, 6 L. ed. 204, and Western Lunatic Asylum v. Miller,
29 W. Va. 326, 6 Am. St. Rep. 644, 1 S. E. 740.
c. Effect of Statutes Expressly Applying Limitations.
1. Necessity for Sovereign to be Expressly Named. — In United
States V. Nashville etc. Ry., 118 U. S. 120, 6 Sup. Ct. Eep. 106, 30
L. ed. 81, it was hold "that the United States asserting rights vested
in them as a sovereign government are not bound by any statute
of limitations unless Congress has clearly manifested its intention
that they should be so bound": See, also, United States v. Tloar,
2 Mason, .".ll. Fed. Cas. Xo. 15,373; United States v. Backus, 6
Mcl.oan, 443, Fed. Cas. No. 14,491; San Francisco Savings Union
V. Irwin, 28 Fed. 70S: Booth etc. v. United States, 11 Gill & J. 373,
to the same effect.
And in United States v. Thompson, 98 U. S. 488, 25 L. ed. 194,
the court, in holding that the United States is not bound by a
state statute of limitation, said: "This case turns upon a statute
of the state of Minnesota, which bars actions ex contractu, like
this, within a specified time, and tlie same limitation is applied
by statute to the state. Tlie United States are not named in it.
T!ie court below held that the statute applied to the United St;it(>3,
and rendeiT'd j\idgTnont against them.
"There is no opinion in the record, and we are at a losr< to
imagine tlie reasoning by which the result was readied. The federal
courts have lieen in existence nearly a century. The rep I'fs of
their decisions are numerous. They involve a great vari(>ty {>?. ques-
tions aiid the fruit of inucli learned research. We have been aliie
to lind but two cases in the lower federal courts in wjiicli it npjicars
tlie rpiestion was raised. Tliey are United States v. IToar, 2 Mason,
311. Fed. Cas. Xo. 15.37:',, and T'nite.l :^tates v. Williams, 5 Mc-
Lean, 133, Fed. Cas. Xo. ]r,--2]. In loth, it was held, without
June, 1901.] Bannock County v. Bell. 1(i5
the intimation of a doubt, that a state statute cannot bar the
United States. The same doctrine has been several times laid down
by this court; but it seems always to have been taken for granted,
and in no instance to have been discussed either by counsel or
the court: United States v. Buford, 3 Pet. 12, 7 L. ed. 585; Lindsey
V. Miller's Lessee, 6 Pet. 666, 8 L. ed. 538; Gibson v. Chouteau, 13
Wall. 92, 20 L. ed. 534.
"This state of things indicates a general conviction throughout
the country that there is no foundation for a different proposition.
There are also adjudications in the state reports upon the subject but
they concur with those to which we have referred. Among the earli-
est of them is Stoughton v. Baker, 4 Mass. 522, 3 Am. Dec. 236. In
that case Chief Justice Parsons said: 'No laches can be imputed to
the government, and against it no time runs so as to bar its rights.'
The examination of the subject by Judge Story in United States v.
Hoar, 2 Mason, 311, Fed. Cas. No. 15.373, is a fuller one than we have
found anywhere else. He and Parsons are in accord. So far as we
are advised the case before us stands alone in American jurispru-
dence. It certainly has no precedent in the reported adjudications of
the federal courts." And continuing the court said: "The only ar-
gument suggested by the learned counsel for the defendants in er-
ror is that the judiciary act of 1789, re-enacted in the late revision
of the statutes, declares 'that the laws of the several states, ex-
cept where the constitution and treaties of the United States shall
otherwise require or provide, shall be regarded as rules of decision in
trials at common law, in the courts of the United States, in cases
where they apply.' It is insisted that the case in hand is within
this statute. To this there are several answers.
"The United States not being named in the statute of Minne-
sota, are not within its provisions. It does not and cannot 'apply'
to them. If it did, it would be beyond the power of the state
to pass it, a gross usurpation, and void. It is not to be presumed
that such was the intention of the state legislature in passing the
act, as it certainly was not of Congress in enacting the law of
1789: United States v. Hoar, 2 Mason, 311, Fed. Cas. No. 15,373;-
Field V. United States, 9 Pet. 182, 9 L. ed. 94. The federal courts
are instruments competently created by the nation for national pur-
]^oses. The states can exercise no power over them or their pro-
ceedings except so far as Congress shall allow. This subject was
considered in Farmers' etc. Bank v. Dcariiig, 91 U. S. 29, 23
L. ed. 19G, and we need not pursue it further ujton this occasion":
See, also, United States v. Spiel, 8 Fed. 143, 3 McCrary, 107; United
States V. Belknap, 73 Fed. 19, to the same effect. But also see Stan-
ley V. Schwalby, 147 U. S. 508, 13 Sup. Ct. Eep. 41 S, 37 L. el.
259, to the effect that the United States may avail itself of the
benefits of a state statute of limitation as a defense.
166 AifERiCAN State Reports, Vol. 101. [Idaho,
It seems to be universally held that statutes of limitation do not
run against the state unless the state is expressly named in the
statute, as being included amongst those against whom it is to
operate: Ware v. Greene, 37 Ala. 494; Swann v. Lindsey, 70 Abv 507;
Madison County v. Bartlett, 1 Scam. (111.) 70; State v. School
District, 34 Kan. 237, 8 Pac. 208; Hardin v. Taylor, 4 T. B. -Men.
516; Booth etc. v. United States, 11 Gill & J. 373; Parks v. State,
7 Mo. 194; People v. Gilbert, 18 Johns. 227; People v. Herkimer,
4 Cow. 345, 15 Am. Dec. 379; Commonwealth v. Johnson, 6 Pa.
136; Harlock v. Jackson, 3 Brev. (S. C.) 254; Governor v. Allbright,
21 Tex. 753; Brown v. Snecd, 77 Tex. 471, 14 S. W. 248; State
Treasurer v. Weeks, 4 Vt. 215. In Josselyn v. Stone, 28 Miss. 763,
the court in advancing reasons why statutes of limitation would
not operate against the state unless the state was expressly in-
cluded within their operation, said: "It is a universally recognized
rule that no laches is to be imputed to the state and against her;
that no time runs so as to bar her rights. This is a great prin-
ciple of public policy, intended to secure the rights and property
of the public against loss or injury by the negligence of public
officers and agents. And upon the same reason, it is the settled
doctrine that the general words of a statute do not include the
state or affect her rights, unless she be specially named, or it be
clear and indisputable from the act that it was intended to include
the state": Citing People v. Gilbert, 18 Johns. 228; United States v.
Hoar, 2 Mason, 314, Fed. Cas. No. 15,373; Stoughton v. Baker, 4
Mass. 528, 3 Am. Dec. 236; State of Maryland v. Bank of Mary-
land, 6 Gill & J. 205, 26 Am. Dec. 561.
2. Construction of Limitation Statutes Affecting Governmental
Bodies. — It seems to be a general rule of construction of statutes
that general words used in a statute will not apply to the United
States or a state to the detriment of their sovereign rights or in-
terests unless such an intent clearly appears from the language
used. Thus it was said in Dollar Savings Bank v. United States,
19 Wall. 239, 22 L. ed. 80, that: "It is a familiar principle that
■the king is not bound by any act of parliament unless he be named
therein liy special and particular words. The most general words
that can be devised (for example, any person or persons, bodies
politii' Or corporate) affect not him in the least, if ihey tend to
restrain or diminish any of his rights or interests: Magdalen Col-
lege Case, 11 Coke, 74; King v. Allen, 15 East, 333. He may even
take the lionofit of any particular act though not named: 7 Coke,
32; Putter's Dwarris on Statutes, 151, 152. The rule thus settled
respecting the British crown is equally applicable to this govern-
ment, and it hag been applied frequently in the different states
nnd practically in the federal courts. It may be considered as
B<ttled that so much of tlie royal ])rerogative as belonged to tlio
king in his capacity of parens patriae, or universal trustee, enters
June, 1901.] Bannock County v. Bell. 167
as much into our political state as it does into the principles of the
British constitution: Commonwealth v. Baldwin, 1 Watts, 54, 26 Am.
Dec. 33; People v. Eossiter, 4 Cow. 143; United States v. Davis, 3
McLean, 483, Fed. Cas. No. 14,929; United States v. Williams, 5 Mc-
Lean, 133, Fed. Cas. No. 16,721; Commonwealth v. Johnson, 6 Pa.
St. 136; United States v. Greene, 4 Mason, 427, Fed. Cas. No. 15,258;
United States v. Hoar, 2 Mason, 311, Fed. Cas. No. 15,373; United
States V. Hewes, Crabbe, 207, Fed. Cas. No. 15,359."
And Justice Story, in the much cited case of United States v.
Hoar, 2 Mason, 314, Fed. Cas. No. 15,373, in a case involving the
application of the maxim in connection with a statute of limitation,
said: "But independently of any doctrine founded on the notion of
prerogative, the same construction of statutes of this sort ought to
prevail, founded upon the legislative intention. Where the govern-
ment is not expressly or by necessary implication included, it ought
to be clear from the nature of the mischiefs to be redressed, or the
language used, that the government itself was in contemplation of
the legislature, before a court of law would be authorized to put
■Such an interpretation upon any statute. In general, acts of the
legislature are meant to regulate and direct the acts and rights of
■citizens; and in most cases the reasoning applicable to them applies
with very different, and often contrary, force to the government
itself. It appears to me, therefore, to be a oufe rule, founded in the
principles of the common law, that the general words of a statute
ought not to include the government, or affect its rights, unless that
■construction be clear and indisputable upon the text of the act."
This language was approved in Stanley v. Schwalby, 147 U. S. 515,
13 Sup. Ct. Eep. 418, 37 L. ed. 259. And in State v. School District,
34 Kan. 242, 8 Pac. 208, the court, in discussing the rules of inter-
preting statutes of limitation in their application to the state, said:
^'Even where there is a doubt as to whether the state was intended
to be included within the provisions of the statute, the doubt must
be solved in favor of the state and the state held not to be included:
Des Moines County v. Harker, 34 Iowa, 84, and cases there cited."
See, also, on this point, Minturn v. Larue, 23 How. (U. S.) 435, 16 L.
ed. 574; State v. Garland, 7 Ired. (29 N. C.) 48; City of PoUa v.
Scholte, 24 Iowa, 283, 298, 95 Am. Dec. 729; Hall v. Byrne, 1 Seam.
140.
In County of Des Moines v. Harker, 34 Iowa, 84, the court held
that the words "bodies corporate and politic," used in a statute of
limitation, would not include the state in its operation. The court
said: "There are subjects to which this statute can be applied in all
its language and force without including the state. The legislature
does not, when prescribing a rule for the state, call it a 'body poli-
tic and corporate.' It is not probable such a designation can be
found in the entire history of our legislation."
168 American State REroRTS, Vol. 101. [Idaho,
The case of Ealston v. Weston, 46 W. Va, 544, 76 Am, St. Rep. 834,
33 S. E. 326, discussed the application of the statutes of limitation
with reference to the adverse possession of a street. The case
went into the policy of the maxim "Nullum tempus occurrit regi"
very exhaustively, and is perhaps one of the latest cases dealing as
exhaustively with that particular branch of the subject. The opin-
ion does not show the wording of the statute of limitation, which
it was contended barred the state, but the court held that it did not
operate against the state because the suit involved the rights of the
public in a highway. The court, after citing several provisions of
the state constitution to that effect, said that: "The peo'ple, in their
collective capacity, are sovereign. To them all so-called 'preroga-
tive rights' belong, and from them they cannot be taken, or in any-
wise diminished except in accordance with their own appointment."
Then proceeding from this premise, the court said: "The word
'state' is generally used to denote three different things and often
without discrimination: 1. The territory within its jurisdiction; 2. The
government or governmental agencies appointed to carry out the will
of the people; and 3. The people in their sovereign capacity. The
state is not the sovereign in this country. The people who make it
are sovereign, and all its officers are but their servants. So statutes
of limitations, wliicli are made to apply to the state, do not apply to
the people or their public rights. But they only ajiply to the state
in the same cases that they apply to individuals. The entry upon,
or recovery of, lands held for sale, suits or bonds, contracts, evi-
dences of debt, or for torts — all these, though the state is a party,
are subject to bar. As to all such things, there is no reason why
the state should have any longer time than an individual. Such is
not the case with the right of taxation, the right of eminent do-
main, the right to use public highways and other rights, which per-
tain only to the sovereignty of the people. None of these can ever
be lost bv the negligence of the public servants, who have no power
of disposal over them in any way whatever, except according to the
express will of the people. It would be a strange thing for an indi-
vidual to plead the statute in bar of the right of eminent
domain, which is said to be the riglit of the people to take
private property for public use. Tlie right to keep it for )>ul)lic use
should be as extensive as the right to take it; for one would be use-
less witlinut the other. The former is said to be an attribute of sov-
ereignty, and why not the latter?"
It seems to us that it might logically be concluded from the case
just cited (if it enunciates sound law) that even where the word
"state" is expressly used in a statute of limitations, that tlie stat-
ute of limitation is not operative against the state in a case wherein
the subject matter of the litigation involves a public right as distin-
guishable from a transaction in the nature of an ordinary business
transaction. Hence, the quest iuu for determination under such cir-
June, 1901.] Baxxock Couxty v. Bell. 1G9
cnmstances, would be whether the subject matter of the litigation
involved the exercise of sovereign functions on the part of the state
or governmental body attempting to act in the sovereign capacity.
And it would also seem to follow that it would be necessary in order
to make a statute of limitation applicable to the state in a matter
involving a public right, that the passage of the statute be authorized
liv the people of the state under such forms as the state constitution
would provide for the relinquishment of a right of that character,
or that the statute be clearly authorized by the state constitution.
For a further discussion of this subject see, also, the next section.
Very often in determining whether certain statutes of limitations
apply to an action to enforce official bonds or collect taxes, the ques-
tion is raised whether the liability of the defendant is one created
by statute, the statute sought to be set up in bar having application
to such liabilities. Questions of that sort arose in Placer Co. v.
Dickenson, 45 Cal. 12; Graham County Commrs. v. Van Slyck, 52
Kan. 622, 35 Pac. 299; Kenton County v. Lowe, 91 Ky. 367, 16 S. W.
82; Louisville etc. Co. v. Commor wealth, 108 Ky. 717, 57 S. W. 624,
G26; State v. Sage, 75 Minn. 448, 78 N. W. 14; State v. Baker County,
24 Or. 141, 33 Pac. 530; State v. Davis, 42 Or. 34, 71 Pac. 68, re'hear-
ing in 72 Pac. 317; Bristol v. Washington Co., 177 U, S. 133, 20 Sup.
Ct. Eep. 585, 44 L, ed. 701.
d. Eights of Governmental Body When a Litigant.
1. In General.— In Ee Ash's Estate, 202 Pa. St. 422, 90 Am. St.
Eep. 658, 51 Atl. 1030, it was said: "When the commonwealth comes
into its courts, it is subject like all other suitors to the established
rules of evidence. It must meet the burden of proof, its evidence
must be relevant, material, the best attainable, and must be pre-
sented in due order under the regular rules of procedure. In all such
respects it stands upon the same footing as ordinarj^ litigants. Stat-
utes of limitation do not apply to it, because the maxim 'nullum
tempus occurrit regi,' though probably in its origin a part of royal
prerogative, has been adopted in our jurisprudence as a matter of
important public policy. But rules of evidence and legal presump-
tions are not changed for or against the state as a suitor. A statute
of limitation is a legislative bar to the right of action, but the pre-
sumption of payment from the lapse of time is not a bar at all but
simply a rule of evidence, affecting the burden of proof." In Lynch
V. United States, 13 Okla. 142, 73 Pac. 1095, which was a suit by the
United States to cancel a land patent, the court said: "The United
States stands in no different relation as a suitor than any individual.
When the government comes into a court to submit a question to
judicial determination, she is not acting in her capacity as a sovereign
but as a litigant claiming the same rights and bound by tlie same
rules as any of her citizens unrVT similnr cireumstanees. This was
expressly held in United Stat'^s v. T!;;nk of Metropolis, 15 i'et. 377,
170 American State Reports, Vol. 101. [Idaho.
10 L. ed. 774; Brent v. Bank of "Washington, 10 Pet. 596, 9 L. ed.
547; United States v. Hughes, 11 How. 552, 13 L. ed. 809; United
States V. Throckmorton. 98 U. S. 61, 25 L. ed. 93; United States v.
Minor, 114 U. S. 233, 5 Sup. Ct. Rep. 836. 29 L. ed. 110." See, also,
State V. Kennedy, 60 Nob. 300, 83 N. W. 87, and State v. Zanco, 18
Tex. Civ. App. 127. 44 S. W. 527.
It would seem that where the state is the real party in interest,
it is bound by the result of the litigation, even though the litigation
was conducted by a municipal corporation. Thus, in People v. Holla-
day, 93 Cal. 241, 27 Am. St. Ecp. 186, 29 Pac. 54, Justice De Haven
iu rendering the opinion, said: "The city and county of San Fran-
cisco is a municipal corporation created by the legislature of the
state, and has conferred upon it by the state full power and juris-
diction over the public squares witliin its territorial limits, with the
right to sue and be sued, and this necessarily includes the authority
to maintain and defend all actions relating to its right to subject
to the public use such squares or land claimed by it to have boon
dedicated for such purposes; and in any action brought by it for
the purpose of vindicating and protecting the public rights in sncli
squares, or land claimed as sucli, the state would be bound by tlio
result because in such action the citj' and county would in fact
represent the people of the state by virtue of the authority given
it to maintain such actions for the purpose of preserving the public
rights of which it is the trustee. A municipal corporation is for
T!iany purposes but a department of the state organized for the more
convenient administration of certain powers belonging to the state:
Sinton v. Ashbury, 41 Cal. 530; Barnes v. District of Columbia, 91
U. S. 544, 23 L. ed. 440; Board of Education v. Martin, 92 Cal. 20!),
28 Pac. 799; and such corporations, in their management and control
over streets and squares within their limits, and in actions for the
\ indication and preservation of the public rights therein exercise
a part of the sovereignty of tlie state."
The position of county or municipal corporations toward its citi-
zens and taxpayers as trustees in actions brought by them relative
to matters affecting the general welfare is treated in Freeman on
Judgments, section 178.
In Western Lunatic Asylum v. Miller. 29 \V. Va. 320, 6 Am. St.
Eep. 644, 1 S. E. 740, the plaintiff claiming to be a part of tlie
commonwealth of A'irginia, commenced suit in West Virginia. The
<'ourt, after discussing the real status of plaintiff, said: "But conced-
ing, as claimed liy tlie plaintiff, that this corporation and the com-
monwealth (if Virginia are one and the same, and that it must bo
treated here as possessing all the attributes and immunities which
belong to tlie sovereign commonwealth of Virginia, still, when Vir-
ginia seeks redress and becomes a suitor in the courts of this state
and beyond her territorial limits, she must lay aside her attributes
iind immunities of sovereignty, and assert her demands aa private
June, 1901.] Banxock County v. Bell. 171
individuals or corporations assert theirs in those courts, subject to
the same laws and limitations. Sovereignty, though supreme Tvithin
its own jurisdiction and territory, does not extend beyond these;
and when a sovereign state enters the courts of a foreign stat;e, she
(Ines so with no other rights and immunities than those which per-
tain to private corporations or individuals: Esley v. People, 23 Kan.
CIO. The lex fori governs in the limitation of actions: Johnson v.
Anderson, 76 Va. 766."
2. Where Governmental Body is Merely a Nominal Plaintiff.— In
tJnitod States v. Beehe, 127 U. S. 344, 8 Sup. Ct. Eep. 1083, 32 L. ed.
J 21, the court remarked that "the principle that the United States
are not bound by any statute of limitation, nor barred by any laches
of their ofRcers, however gross, in a suit brought by them as a sov-
ereign government to enforce a public right, or to assert a public
interest, is established past all controversy or doubt: United States v.
Nashville etc. Ey. Co., 118 U. S. 120, 125, 6 Sup. Ct. Eep. 1006, 30 L.
ed. 81, and cases there cited. But this case stands upon a different
footing and presents a different question. The question is, Are
these defenses available to the defendant in a case where the govern-
nvent, although a nominal complainant party, has no real interest in
the litigation but has allowed its name to be used therein for the
sole benefit of a private person? It has not been unusual for this
court, for the purpose of justice, to determine the real parties to a
suit by reference, not merely to the names in which it is brought,
but to the facts of the case as they appear in the record." The
court then cited and commented on In re Ayres, 123 U. S. 443, 8 Sup.
Ct. Eep. 164, 31 L. ed. 216, New Hampshire v. Louisiana, lOS U. S.
76, 2 Sup. Ct. Eep. 176, 27 L. ed. 656, United States v. Nashville etc.
Ey. Co., 118 U. S. 120, 6 Sup. Ct. Eep. 1006., 30 L. ed. 81, Maryland
V. Baldwin, 112 U. S. 490, 5 Sup. Ct. Eep. 278, 28 L. ed. 822, Miller
V. State, 38 Ala. 600, McNutt v. Bland, 2 How. 9, 11 L. ed. 159,
Moody V. Fleming, 4 Ga. 115, 48 Am. Dec. 10, as cases sustaining the
proposition that the court could properly ascertain whether the
sovereign body was the real party in interest, after which it said:
"We are of the opinion that when the government is a mere formal
complainant in a suit, not for the purpose of asserting any public
right or protecting any public interest, title or property, but merely
to form a conduit through which one private person can conduct liti-
gation against another private person, a court of equity will not be
restrained from administering the equities existing between the real
parties by any exemption of the government designed for the pro-
tection of the United States alone. The mere use of its name in a
suit for the benefit of a private suitor cannot extend its immunity
as a sovereign government to said private suitor, whereby he can
avoid and escape the scrutiny of a court of equity into matters
pleaded against him by the other party, nor stop the court from ex-
172 American State Reports, A^ol. 101. [Idaho^
amining into and deciding the case according to the principles gov-
erning courts of equity in like cases between private litigants."
In State v. Halter, 149 Ind. 297, 47 N. E. 665, which was an action
to recover certain penalties fixed by statute for giving false lists
of taxable property, the court, after reviewing some of the cases
(.n the subject as to whether the state was the real plaintiff, said:
' ' The distinction that rung through all the cases is the difference
between an action in the name of the state to protect the interest
of the public, and an action to enforce a private right for the sole
benefit of a private person. Upon reason and authority, therefore,
the rule is that, when the statute of limitations is pleaded in an
action where the state is plaintiff, the court must determine, from
an examination of the «ntire record, whether the action seeks to en-
force a public right, in the interest of the public, or a private right,,
for the benefit of a private person. If to enforce a public right, in
the public interest, the statute of limitations is not applicable; but
if to enforce a private right, in a private interest, the statute is ap-
plicable, although the state is named as plaintiff.
"It becomes necessary-, therefore, to determine whether this ac-
tion is brought in the interest of the public, to enforce a penalty
for the benefit of the public, or whether it is merely a private action,
to enforce liability in a private interest." Tlie court then discussed
tlie nature of the proceeding and held it to be of a public nature.
In Moody v. Fleming, 4 Ga. 115, 48 Am. Dec. 210, the controversy
arose over the refusal of a trial judge to issue a writ of mandate
on the petition of a private individual. The court, in discussing
the application of the statutes of limitation to tlie proceeding, said:
"The state of (ieorgia is not the real party to the proceeding.
She is not asserting any right, and is not before the court. The
petition for a mandamus is by a private individual, and it was upon
that petition alone that the decision complained of was made. But
if the writ had issued, and the writ of error was founded upon
alleged errors in a judgment growing out of the writ and the return,
then the state would be no party. The process, it is true, is in the
name of the state, Imt the right asserted is a private right; the issue
is between two of tlio state. I have already stated that this court
lias determined that a proceeding by mandamus, upon the relation
(if a private person, is in the nature of a suit. It is in England
called a pn rogiitivc writ. It is tliere held the process by which the
crown exerts a hiyh prerogative, through the courts of justice. The
jirerogative of asserting for a sulijcct a right wliicli could not lie
ollierwiso assr^rtod or enforceil. This prerogative here bclmigs to
tb.e people. They exert it tlirongli thoir courts of justice by using
tlie name of tlie state, rind although the writ of mandamus is gov-
ernod by principles peculiar to itself, yet to all practical intents and
]iirposes it is a suit. Tu this view of tho subjoct, we conclude that
tlic maxim 'Nullum tempus occurrit regi ' has no relevancy."
June, 1901.] Bannock County /;. Bell. 173
The same principles were announced in Miller v. State, 38 Ala.
^00, in the following language: "Though the state is a party to this
suit, it has no real interest in the litigation. If there be a right
of recovery, the property sued for belongs, not to the state, but to
the township; so that in point of fact the suit is substantially be-
tween the township and the defendant [the action was brought by
the state "for the use of" the township]. The code expressly pro-
vides that, in all cases where suits are brought in the name of the
person having the legal right, for the use of another, the beneficiary
must be considered as the sole party on the record: Code, sees. 2130,
2383. In our opinion, the rule that the statute of limitations does
not run against the state has no application to a case like the present,
where the state, though a nominal party on the record, has no real
interest in the litigation, but its name is used as a means of en-
forcing the rights of a third person."
The principle, that the statutes of limitation will run against the
sovereignty where it is merely a nominal and not the real plaintiff
was also asserted in Molton v. Henderson, 62 Ala. 426; United States
v. Southern Pacific E. Co., 39 Fed. 132; United States v. Des Moines
etc. E. Co., 70 Fed. 435; Parmilee v. McNutt, 1 Smedes & M. 179;
State V. Pratte, 8 Mo. 286, 40 Am. Dec. 140; Commonwealth v. Bald-
win, 1 Watts, 54, 26 Am. Dec. 33; Montgomery v. Hernandez, 12
Wheat. 134, 6 L. ed. 575.
3. Litigation Affecting Public Rights. — In the well-considered
caPe of County of Piatt v. Goodell, 97 111. 90, the court discussed not
only the distinction as to the application of statutes of limitation
where the rights were public in character and where they were
private, both as to states and the minor subdivisions of states, but
it also adverted to the so-called doctrine of equitable estoppel. The
language of the court in that case expresses very clearly the trend
of argument used by other courts in discussing the subject. The
■controversy in that case arose over a claim of adverse possession to
a tract of swamp land owned by the county under a color of title
acquired by a tax title, although the land was in fact not liable for
taxes. The court said: "The real and vital question in this case
would seem to be. Can the title of lands belonging to a county, which
are not held for some public use or trust, and which the county may
at pleasure sell and convey without any breach of duty, be de-
feated by possession and payment of taxes under color of title made
in good faith, for a period of seven years, in the same manner as if
they belonged to an individual?
"The solution of this question necessarily leads to a consideration
of the more general inquiry, whether municipal corporations — using
the term in its most extended sense — like individuals, are subj(M't
to general statutes of limitation. 'Nullum teuipus occurrit rogi'
is one of the ancient maxims of the common law, and is the natural
offshoot of the maxim, 'Rex non potest peccare.' Inasmuch as by
the latter maxim the king was regarded as incapable of doing a
174 American State Reports, Vol. 101. [Idaho,
wrong, it necessarily followed that negligence or laches could not be
attributed to him, and it was held, therefore, at an early day, that
the king was not subject to statutes of limitations, except when ex-
pressly named, and such has been the law from that period to the
present.
"The same doctrine has generally been recognized by the courts
of this country, both national and state, as applicable to the federal
ond state governments. And the same general doctrine, with certain
limitations, has by the same courts, with more or less uniformity,
been extended to other municipal and quasi municipal corporations,
such as cities, towns, counties, etc. It is clear from the authorities,
that these latter corporations have not the same immunity from fhe
operation of limitation laws, and the effects of unreasonable delays,
in the enforcement of their rights, or the performance of their
duties, as the federal and state governments have.
"In City of Alton v. Illinois Transportation Co., 12 111. 38, 52
Am. Dec. 479, which was an action of ejectment, brought by the
city to recover a strip of land constituting a part of the public
landing, it was objected, among other things, that the action was
barred by the limitation act of 1835, requiring certain real actions
to be brought within seven years after possession taken of the
premises sought to be recovered. But tire objection did not prevail,
the court holding that the city did not fall within the provisions of
that act, and in disposing of the question it was there said: 'With-
out stopping to inquire whether the rule that laches is not imputable
to the public, or that time does not run against the government,
applies to inferior municipal incorporations, such as towns, cities
find counties, as well as to the state, we entertain no doubt that this
statute has no application to the case before us. Whatever title to
these public grounds may be vested in the city, she has not the
unqualified control and disposition of them. They were dedicated
to the public for particular purposes, and only for such purposes can
they be rightfully used. For those purposes the city may improve
?nd control them, and adopt all needful rules and regulations for
tloir management and use; but she cannot alien or otherwise dispose
of theni for her own exclusive benofit; nor are they subject to the
payment of her debts. At most she but holds them in tnist for the
benefit of the public. The right to the use of the property is not
Huiited exclusively to the citizens of Alton, but tho citizens of the
stnte generally have an equal right with them in the ap])rnpriate
enjoyment of the dedication. This is not like the case of property
purchased by the city for her own exclusive use, which slie could
dispose of at her pleasure. Whether an adverse possession wouM
run against property tliiis liold we do not now jiropose to inquire; but
we entertain no doubt that this statute does not apply to this case,
and that the rights of the public in this dedication have not been
forfeited by nonuser or barred by adverse possession.*
June, 1901.] Bannock County v. Bell. 175
"It will be perceived that the court, in the case just cited, ex-
pressly refused to consider the general question, whether inferior
municipal corporations, such as towns, cities • and counties, are ex-
empt from the operation of general statutes of limitations, and that
the decision is placed upon the express ground that the land in con-
troversy was held by the city in trust for the use of the people of
the state generally, and not for the exclusive use of the people of
the city, and that by reason of its being thus held, the city
had no authority or power to sell the same, or use it for other
purposes than those for which it had been dedicated. Never-
theless the case, in view of the grounds upon which it is placed, is
an authority in favor of the proposition that there is a well-founded
distinction between eases where the municipality is seeking to en-
force a right in which the public in general have an interest in
common with the people of such municipality, and cases where the
jiublic have no such interest. Otherwise that decision could not be
sustained upon the grounds stated. But the distinction in question
does not rest alone upon that case. It is recognized in numerous
well-considered cases, and by the ablest elementary writers.
"Even in cases where it is conceded that the rights involved are
such as the public in general have an interest in common with the
people constituting the municipality, the authorities do not uni-
versally hold that such rights cannot be lost under peculiar circum-
stances by nonuser or adverse possession. But cases of this char-
acter rest rather upon the doctrine of estoppels in pais than upon
limitation laws strictly so called. The mere nonuser or adverse
possession alone would not have this effect. In all such cases some
other element must enter into them, which would render it inequi-
table to enforce the rights.
"Dillon, in his work on Municipal Corporations, after discussing
Ihe subject under consideration in the light of the numerous decisions
bearing upon it, sums up his own conclusions in the following lan-
guage:, 'Municipal corporations, as we have seen, have, in some
rosppcts, a double character — one public, the other (by way of dis-
tinction) private. As respects property not held for public use, as
streets, commons, etc., and as respects contracts and rights of a
private nature, there is no reason why such corporations sliould not
fall within limitation statutes and be affected by them. For ex-
ample, in an action on contract or for tort, a municipal corporation
nay plead or have pleaded against it the statute of limitations. But
such a corporation does not own and cannot alien public streets or
places, and no laches on its part or that of its officers can defeat tlie
right of the public thereto; yet there may grow up in consequence
private rights of more persuasive force in the particular case than
those of the public. It will perhaps be found that cases will arise
of such a character that justice requires that an equitable estoppel
shall be asserted even against the public; but if so, such cases will
176 American State Reports, Vol. 101. [Idaho,
form a law unto themselves, and do not fall within the legal opera-
tion of limitation enactments. The author cannot assent to the
doctrine that, as respects public rights, municipal corporations are
within ordinary limitation statutes. But there is no danger of recog-
nizing the principle of an estoppel in pais as applicable to such
cases, as this leaves the court to decide the question, not by mere
lapse of time, but by all the circumstances of the case, to hold the
public estopped or not, as right and justice may require.'
"The general conclusions reached by this distinguished author and
jurist, as here laid down, have been substantially recognized in a
number of adjudicated cases by this court: See Logan County v. City
of Lincoln, 81 111. 156; Chicago etc. R. Co. v. City of Joliet, 79 111.
25."
And in concluding the opinion, the court said: "Upon a careful
consideration of the authorities, the better opinion would seem to
be that municipal corporations in all matters involving mere private
rights, as contradistinguished from public rights, strictly so called,
are subject to limitation laws to the same extent as private indi-
viduals. On the other hand, in all matters involving strictly public
rights, they are not subject to the limitation laws as such. But,
in the latter class of cases, courts, occasionally, under special cir-
cumstances, which would make it highly inequitable or oppressive to
enforce such public rights, interpose by holding the municipality
estopped doing so.
"Testing the case before us by the principles here announced, the
jdaintiff had no right to recover. The right of the county to the
tract of land in controversy was not of that public character as
exempted it from the operation of the limitation act of 1839. The
county 'had a j)crfect riglit to sell or otherwise dispose of the same
at pleasure at any time before the statute run. The public generally
had no interest in it in common with the citizens and taxpayers of
that county."
And in tlie very recent case of ^Fcfartney v. People, 202 111. 51,
06 X. v.. 873, tile sui>reiiie court again announced that tlie statute
of liiuitations does not run against a municipal corporation acting
in the discharge of a public duty. So, also, in Village of Augusta v.
Tyner, 197 111. 242, 01 X. K. 378, it was held that limitatiou statutes
do not run against a village in rcsnect to adverse occujiation of a
street. In Schnei<ler v. Ilutcliinson, 35 Or. 253, 76 Atn. St. Kep.
474, 57 I'ae. 324, to which is attached a monographic note on t lie
adverse iiosscssiim of jiublic property wlicre the sulj.ject is exliar.s-
tively treated, the court in laying down the principles in connect inn
with this s'jlijei't, said: "A distinction is sometimes made or snimht
to ])(• made in tliis regard between actions brought by the state in
its sovereign and in its jji'oprietary capac^ity, and the aut liorit ies sluiw
much diversity in the deeisions and reasonitig upon this su!>jeet.
But tliis distinetion is generally sug^esti-il in the discussinn of the
questiim as to when and in wnat cases, if any, the statute of limi-
June, 1901.] Bannock County v. Bell. 177
tations will apply to actions brought by the state, when it is not
expressly made applicable to such actions by its terms; and as said
by Mr. Chief Justice Gilfillan in St. Paul v. Chicago etc. Ky. Co.,
45 Minn. 396, 48 N. W. 17: 'The usefulness of the cases and text-
books cited as guides has been mainly done away with by the
statutes. The general statute of limitations seems, and was un-
<ioubtedly intended to include every case of an action brought by a
private person. Section 13 provides: "The limitations prescribed
in this chapter for the commencement of actions shall apply to the
same actions when brought in the name of the state, or in the name
-of any officer, or otherwise, for the benefit of the state, in the same
manner as to actions brought by citizens." .... There is no dis-
tinction suggested in either of these statutes between actions brought
as "sovereign," or in a governmental capacity, and those brought
as "proprietary," or such as a private person might bring for the
same or similar purpose. To hold that it was the intention to make
or preserve such a distinction, so as to exclude from the operation
of the statutes any actions, in whatever capacity the right involved
may be claimed, would be applying a strict rule of construction, con-
trary to the rule that statutes of limitation, being statutes of repose,
are to be liberally construed, so as to effectuate the intention of the
legislature.' The decision from which this quotation is taken was
made under a statute on all-fours with ours, and is, therefore, very
much in point in the present discussion. It was an action brought
to recover possession of certain land in the city of St. Paul, which it
was alleged was a public levee, and a defense of the statute of limita-
tions prevailed. See, also, the following decisions made under a sim-
ilar statute: Abernathy v. Dennis, 49 Mo. 469; St. Charles' Tp.
School Directors v. Goerges, 50 Mo. 194; Burch v. Winston, 57 Mo. 62.
No distinction is to be found in the decisions, under statutes provid-
ing that actions by the state shall be barred within a specified period,
between actions brought in its sovereign and those brought in its
proprietary capacity, but all alike are held to be within the terms
of the statute. There is a line of authorities, however, which hold
that such statutes have no application to actions concerning prop-
erty held by the state for public purposes without power of aliena-
tion: Iloadley v. San Francisco, 50 Cal. 265; People v. Pope, 53 Cal.
437; Board of Education v. Martin, 92 Cal. 209, 28 Pac. 799. But
these authorities, if sound, can have no application to the question
in hand, because the board of commissioners for the sale of school
and university lands not only has the power and authority to alien-
ate and dispose of school lands, but it is expressly made its duty
to do so: Hill's Annotated Laws, sees. 3598, 3602." As bearing on
this discussion, see, also, the case of Ealston v. Weston, 46 W. Va.
544, 76 Am. St. Eop. 834, 33 S. E. 326, commented on in the preced-
ing subdivision relating to the construction of limitation statutes
affecting governmental bodies, and also see the monographic note to
Am. St. Rep. Vol. 101—12
178 American State Eeports, Vol. 101. [Idaho,
Schneider v. Hutchinson, 76 Am. St. Eep. 479, on the "Adverse
Possession of Public Property."
The distinction sought to be drawn as to the application of stat-
utes of limitation to municipal corporations where the matter in-
volved is public in character and where it is merely local, was also
•\dverted to in City of Ft. Smith v. McKibben, 41 Ark. 49, 48 Am.
Eep. 19. In that case, which was a suit for an injunction to restrain
the city from opening a certain alley, the court, in discussing the
nature of municipalities and of the acts involved in the case at bar^
said: "She [the plaintiff] claims that the action of the city was
oppressive, as well as unauthorized. That the alley was never dedi-
cated to the public, and that if it were, the right of the municipality
to control it had been lost by limitation. It is convenient to con-
sider the last question first. It is one of great importance, which
has been frequently considered in other states, and with regard to
which there is much conflict of authority. It may be presented thus:
Is a city or town corporation, with respect to property or powers
which it holds in trust for the public, bound by the statute of lim-
itations, so as to be precluded, by lapse of time and adverse holding,
from claiming to control the property or exercise the power? With
regard to property or contract rights which the municipality claim*
for its own convenience as a corporation, there is little difliculty.
Almost, if not quite, all the authorities concur in holding in such
cases that it is amenable to the statute; and we think it obvious that
it should be, on principle. Quoad hoc, it does not represent the
sovereignty of the people, but only itself and the local interests of
citizens.
"The trouble arises where the powers are held in trust, not for
the members of the body corporate alone, but for the whole people
who may come to the city. The most common cases are those arising
with regard to the use of streets, squares, parks and commons, which
have been dedicated to the public. Appellees contend that in this
respect alleys do not stand upon the same ground with streets and
squares; but, waiving that for the present, we will consider the ques-
tion with regard to all. If municipalities are not bound by statutes
of limitations with regard to these public trusts — that is, with reg;ird
to their power to keep open streets, etc. — it must be upon the maxim,
'Nullum tempus occurrit regi,' and that municipalities arc the adju-
tants of govornment, and have the franchise of sleeping upon their
rights; or, ratlicr, that the public must not suffer from their neglect.
But municijial corporations are not really the state, nor are their
functions and j.owers conferred for the l;enefit of the whole people
of the state, although incidentally they hold some trusts in the ex-
ercise of which any citizen of the state may come to bo interested.
It may well be douVited whctli^T the renson of the maxim may not
1..-. st'-iin'^d too fnr in ap]dyirig it to these lio'iics. That 'the time
and atluntiun of the sovereign must be supposed to be occupied by
June, 1901.] Bannock County v. Bell. 179
the cares of government' might well have excused a king from as-
serting his rights, but affords no reason why the of&cers of a cor-
poration should not be reasonably diligent in the discharge of the
very duties they were selected to execute. Nor does it afford a rea-
son why citizens, daily sensible of an encroachment on their common
rights, should be allowed to lie dormant for many years, and then
assert them to the detriment of others. The maxim should not be-
come the instrument of wrong. The more wholesome rule for the
citizen, individually, and collectively as well, is that the laws favor
the vigilant only, and not the careless and slothful."
In Re Counties etc. v. Alturas County, 4 Idaho, 145, 95 Am. St.
Eep. 53, 37 Pac. 349, it was held that municipal corporations (includ-
ing counties in the term), in all matters involving mere private rights
as contradistinguished from public rights, strictly so called, are sub-
ject to limitation laws to the same extent as private individuals,
but, on the other hand, in all matters involving strictly public rights,
they are not subject to the limitation laws as such. The decision in
the principal case (Bannock County v. Bell, ante, p. 140), though
overruling the case of Fremont v. Brandon, 6 Idaho, 482, 56 Pac. 264,
which held that certain limitations ran against the county, in re-
ferring to the case cited above, merely said it was not in point.
It has also been held in general terms that statutes of limitation
do not run against municipal corporations as to property held or
used for public or governmental purposes: Mobile Transportation Co.
V. Mobile, 128 Ala, 335, 86 Am. St. Rep. 143, 30 South. 645; Bedford
V. Willard, 133 Ind. 562, 36 Am. St. Rep. 563, 33 ]Sr. E. 368; Bay St.
Louis V. Hancock Co., 80 Miss. 364, 32 South. 54. But that such stat-
utes operate where it is not held for public use: Hammond v. Shep-
ard, 1S6 111. 235, 78 Am, St. Rep. 274, 57 N. E. 807.
It was substantially held, in Presidio Co. v. Jeff Davis Co. (Tex.
Civ.), 77 S. W. 278, that neither the doctrine of stale demand nor
limitation statutes would apply to proceedings to determine the
boundary line between two counties. And in United States v. Nash-
ville etc. Co., 118 U. S. 120, 6 Sup. Ct. Rep. 1006, 30 L. ed. 81, the
United States had purchased, as trustee for the Chickasaw Indians,
under certain treaties with them, certain bonds of Tennessee. The
court held that the right of action of the United States on the cou-
pons of such bonds could not be barred by a statute of limitations of
Tennessee, either while it held the bonds in trust, or after becomiug
the owner of the coupons,
4. Litigation Affecting Private Rights or Ordinary Business Trans-
actions.— Many of the cases bearing on the pluise of the subject to
be treated in this section have been adverted to in tlie preeetiing
section. The courts, in treating of tlie application of limitation stat-
utes to cases involving public rights have often, in the same connec-
tion, stated the rule where such statutes were set up in cases in-
180 American State Reports, Vol. 101. [Idaho,
volving private or ordinary business rights; hence, to again com-
ment on or quote from the cases there referred to would be but an
unnecessary repetition. From the cases already referred to and those
which will be referred to in the further discussion of the subject,
it seems that the courts are not entirely harmonious in their views.
In Burlington v. Burlington etc. R. K. Co., 41 Iowa, 140, which was
a suit by the city to recover certain municipal taxes, the court, in
discussing the application of the statute of limitations, said: "It
is argued that as the city is an instrument of the state in exercising
the functions pertaining to government, it is to be regarded as the
state, and the maxim, 'Nullum tempus occurrit regi, ' preserves to it
all rights of action given to enforce its governmental authority.
"The learned counsel for plaintiff admit that they are able to cite.
no authorities in support of their position that the maxim is appli-
cable to the city. They concede that where actions are brought by
municipal corporations to recover property, or to enforce contracts
made with them in their corporate and governmental capacity, the
statute maj- be pleaded, as where like actions are brought by nat-
ural persons. They observe, and we think accurately, that: 'The cases
which hold municipal corporations are not exempt from the statute,
refer to rights of property and not to public duties When the
city, laying aside its sovereignty, places itself in the position of a
mere contracting party and deals with the individual, not as a sub-
ject, but as a natural person, it, as we have before said, subjects
itself to the laws controlling natural persons.' We think the doc-
trine of the quotation is not only well expressed but entirely cor-
rect." The court then lield thiit the city ttixos, which were the sub-
ject of the litigation, were debts, and that it constituted property
hold by the city in its proprietary character.
In Simplot v. Chicago etc. Ry. Co., 16 Fed. 3C1, 5 McCrary^ laS,
the rule was expressed in the following language: "The true rule
is that when a municipal corporation seeks to enforce a contract
right, or some right belonging to it in a proprietary sense, or, in
other words, when the corporation is seeking to enforce the private
rights belonging to it, as distinguished from rights belonging to the
public, then it may be defeated by force of the statute of limita-
tions; but in all cases wherein the corporation represents the p\ib-
lic at large, or the state, or is seeking to enforce a right pertaining
to sovereignty, then the statute of limitations, as such, cannot bo
made applicable. In tlie latter cases the courts may aj)ply the
doctrine or principle of an estoppel, and by means thereof, where
justice and right demand it, prevent wrong and injury from being
done to private rights."
As an illustration of the varied views of the courts as to these
questions and the reasons whicli they urge in su[)port of their views,
we will quote from United States v. McElroy, 25 Fed. 804, and theu
June, 1901.] Bannock County v. Bell. 181
from United States v. Insley, which was the same case in the United
States supreme court, where the decision of the circuit court was
reversed. Both of these cases appear to have been very well con-
sidered. It seems to ns, however, that the reasons given by the
United States supreme court for its holding would not apply to sim-
ilar suits by municipal corporations, although the reasoning might
apply to a state under similar circumstances.
In United States v. McElroy, 25 Fed. 804, which was a suit in
equity by the United States to redeem from a mortgage foreclosure,
Justice Brewer, then on the circuit bench, in delivering the opinion
of the court, said: "Unquestionably, if the plaintiff was a private
individual, the statute of limitations would cut off all right to re-
deem; but it is said that the statute of limitations runs not against-
the government. This is unquestionably true, and it may also, for
the purposes of this case, be conceded that neither the statute of
limitations nor laches bar the government aa to any claim for relief
in a purely governmental matter; but when the government comes
as a complainant into a court of equity, asserting the same rights
as a private individual — a mere matter of dollars and cents, involving
no questions of governmental right or duty — it seems that, although
technically the statute of limitations may not bar^ the ordinary rules
controlling courts of equity as to the effect of laches should be en-
forced. In the case of United States v. Beebee, 17 Fed. 37, 4
McCrary, 12, this rule was laid down by the circuit court of this
circuit: 'Lapse of time may be a sufficient defense to a suit insti-
tuted in the name of the United States. When the government be-
comes a party to a suit in its courts it is bound by the same prin-
ciples that govern individuals. When the United States voluntarily
appears in a court of justice, it at the same time voluntarily submits
to the law, and places itself upon an equality with other litigants.'
"I think that doctrine eminently just and correct. It is especially
true in a case like this. The government could not, except at its
own will, be made a party to any foreclosure suit. When a complain-
ant is, therefore, in a foreclosure suit, unable to compel the appearance
of the government, or to have its rights adjusted and foreclosed, it
would be cruel to hold that a party standing by its own will aloof
from the power of the courts could bide its time, and after the lapse
of many years, when property values have changed, when parties
have acted in the faith of perfect title, come into a court of equity
and say that all these proceedings go for naught so far as title is
concerned, and now claim a property which by the combined efforts
and action of many individuals, among whom is such complainant,
has been largely increased in value. I hold, therefore, that the claim
of the government is barred by its own laches, and that the demurrer
must be sustained and the bill dismissed."
But Justice Blatchford, in delivering the opinion of the United
States supreme court, in United States v. Insley, 130 U. S. 263, 9
183 American State Reports, Vol. 101. [Idaho,
Sup. Ct. Eep. 485, 32 L. ed. 968, which was an appeal of the case
just quoted from, after referring to the decision of the circuit court,
said: "This decision of the circuit court was made in December,
1885, prior to the decisions of this court in the cases of Van Brook-
lin V. State of Tennessee, 117 U. S. 151, 6 Sup. Ct. Rep. 670, 29 L. ed.
845, United States v. Nashville By. Co., 118 U. S. 120, 6 Sup. Ct.
Ecp. 1006, 30 L. ed. 81, and United States v. Beebe, 127 U. S. 338,
8 Sup. Ct. Rep. 1083, 32 L. ed. 121, These cases determine that the
decree in the present case must be reversed.
"In Van Brocklin v. State of Tennessee, 117 U. S. 158, 6 Sup.
Ct. Rep. 670, 29 L. ed. 845, this court said: 'The United States do
not and cannot hold property, as a monarch may, for private or per-
sonal purposes. All the property and revenues of the United States
must be held and applied, as all taxes, duties, imposts and excises
must be laid and collected,' 'to pay the debts and provide for the
common defense and general welfare of the United States.'
"In the present case, the United States holds the title to the prop-
erty in question, as it holds all other property, for public purposes,
and not for private purposes. So holding the title and the right of
possession under their deed, it holds in the same manner, and for
public purposes, the incidental right of redemption. In this view the
doctrine often laid down, and again enforced in United States v.
Nashville Ry. Co., 118 U. S. 120, 6 Sup. Ct. Rep. 1006, 30 L. ed, 81,
applies to this case. It was there said (page 125): 'It is settled be-
yond doubt or controversy — upon the foundation of the great prin-
ciple of public policy, applicable to all governments alike, whifh
forbids that the public interests should be prejuiliced by the negli-
gence of the officers or agents to whose care they are confided — that
the United States, asserting rights vested in them as a sovereign gov-
erninont, are not bound by any statute of limitations, unless Congress
has clearly manifested its intention that they should be so bound:
Lindsey v. Miller, 6 Pet. 660, 8 L. ed. 538; United States v. Knight,
14 Pet. 301, 315, 10 L. ed. 465; Gibson v. Chouteau, 13 Wall. 92, 20
L. ed. 534; United States v. Thompson, 98 U. S. 486, 25 L. ed. 191;
Fink V. O'Xeil, lOG U. S. 272, 281, 1 Sup. Ct. Rep. 325, 27 L. ed. 196.'
Tiiis doctrine is applicable with equal force, not only to the question
of a statute of limitations in a suit at law, but also to the question
of laches in a suit in equity. In United States v. Beebe, 127 U. S.
344, 8 Sup. Ct. Rep. 1083, 32 L. ed. 121, it was said: 'The principle
that the I'nited States are not bound by any statute of limitations,
nor barred by any laches of their officers, however gross, in a suit
brought bv tliem as a sovereign government to enforce a public riulit
or to assert a public interest is established past all controversy or
doubt.' These views entirely cover the present case.
"It was sugo'este.l in the decision of the court below, as a ground
for applying to tlic United States the doctrine of laches, that the
June, 1901.] Bannock County v. Bell. 183
government was not made a party to the foreclosure suit, because it
<;ould not have been made such party except at its own will, and that
it would be a hardship to the other parties to this suit to allow the
government to lie by for so many years, and then come into a court
of equity to assert the rights sought to be maintained in this suit.
It is a sufficient answer to this view to say that the principle we have
, announced has long been understood to be the rule applicable to the
government, and that it rests with Congress, and not with the courts,
to modify or change the rule."
It was, however, held in Bank of the United States v. McKenzie,
2 Brock, 393, Fed. Cas. No. 927, that where a sovereign becomes a
member of a trading company, it devests itself, with reference to the
transactions of the company, of the prerogatives of sovereignty, and
assumes the character of a private citizen. So, also, in Calloway v.
Cossart, 45 Ark. 81, the transactions of a bank which had been aided
by the state, were a matter of controversy, and the questions whether
limitations would apply arose. The court said: "It is obvious that
all these were plain business transactions after the grant of the
original franchises. The attitude of the state with regard to this
property, or her rights of indemnity in it, was just such as might
have been assumed by any individual or private corporation, which
might have chosen to lend its credit to the bank. When a state
steps down into the arena of common business in concert, or in com-
petition with her citizens, she goes devested of her sovereignty. The
reason of the maxim 'Nullum tempus occurrit regi' no longer ap-
plies"; citing United States Bank v. McKenzie, 2 Brock (Chief
Justice Marshall's decisions), 393, Fed. Cas. No. 927; United States
V. White, 2 Hill, 59, 37 Am. Dec. 374; Fields v. Wheatly, 1 Sneed,
351; Bank of Tennessee v. Dibrell, 3 Sneed, 379; Bank of United
States V. Planters' Bank of Georgia, 9 Wheat. 904, 6 L. ed. 244;
Angell on Limitations, 6th ed., sec. 41.
In the United States v. Buford, 3 Pet. 12, 7 L. ed. 585, it was held
that the assignment to the United States of a debt barred by the
statute of limitations gives it no more validity than when in the
assignor's hands. And in United States v. White, 2 Hill, 59, 37 Am.
Dec. 374, it was held that the statute of limitations do not run
against the United States, although they sue upon a note or cause of
action acquired by transfer from a private person, unless the statute
had begun to run before the transfer was made.
In Shelby County v. Biekford, 102 Tenn. 395, 52 S. W. 772, it was
held that where a county sues its grantors on a covenant agaliisc eu-
-cumbrances, tliere having been county taxes due at the time of the
conveyance, the suit is not brought in a sovereign capacity, and
hence it is subject to the ordinary limitation statutes. So, also, in
Johnson v. Llano County, 15 Tex. Civ. 421, 39 S. W. 995, it was held
that a county suing to recover land not devoted to public use is not
•exempt from the operation of the statutes of limitation.
184 American State Eeports, Vol. 101. [Idaho,
Theoretically, the rule that statutes of limitation do not run against
governmental bodies when asserting a public right or protecting
property held for public use, and that such statutes do run against
such bodies when asserting private rights or enforcing rights arising
from out of ordinary business transactions, is sound. The rule is
supported by the weight of authority, although there are somo cases
which seem to hold that the pecuniary interests of the United States
are matters of sovereignty. The difficulty of any rule in regard to
the subject lies in its application to the varied circumstances of each
particular case. There are, of course, many circumstances under
which it would be readily conceded that the governmental body is
acting strictly in a sovereign capacity, but, on the other hand, there
are many other circumstances when it seems to us that it is ex-
tremely doubtful whether the governmental body is acting in a
strictly sovereign capacity in attempting to enforce alleged property
rights. It would seem that when all the people of the United States
or of the state (both of which seem to be recognized as representing
the sovereignty) are interested in the subject matter of the litiga-
tion, that there is no question about the maxim applying, but that
when only a portion of the people of the state — for instance, that
part of the people residing in some minor subdivision of the state,
such as a county or municipal corporation — are the sole parties in-
terested in the subject matter of the litigation that then the maxim
does not apply. It seems to be held by some of the courts that in so
far as a municipal corporation acts merely for the benefit of the
people within the limits of the municipality, its actions are similar
to those of a private corporation acting in the iuterest of its stock-
holders, and that as to such actions, the municipality is bound to use
the same degree of vigilance as a private corporation, but that when
the municipality acts in regard to some matter or thing in wliieh
all the people of the state are interested, though, perhaps, in a lesser
degree than the people within the limits of the municipality, it then
acts as the representative of the sovereignty and the maxim applies.
The courts, however, apparently do not apply these principles uni-
formly. It is very often quite difficult to determine when the sub-
ject matter affects the general public, and when it affects only the
locality, and besides the application of the maxim strictly often
operates very harshly on individual interests. But many of the
courts, as we have seen, apply the doctrine of equitable estoppel
where the strict application of the maxim would work a hardsliip
upon innocent individuals. The application of the maxim is also
limited to a large extent by statutory provisions, and many of the
ajij>arently inconsistent decisions may be reconciled with the prin-
ciples set forth by the weight of authority by considering tlicin in
the light of the statutory provisions in regard to the application of
limitations in the jurisdiction where the decision was rendered-
June, 1901.] Bannock County v. Bell. 185
e. Actions or Proceedings in Which Application of Maxim Was
Sought.
1. In General. — Inasmuch as the main purpose of this note has
been, merely to discuss the general principles regarding the maxim
and its application, we shall not comment on or discuss the cases
which we shall cite, wherein it was sought, successfully or unsuccess-
fully, to apply the maxim. In many instances, the question has been
one of construction as to whether a particular statute of limitation
was sufficiently expressive to overcome the exemption afforded by
the maxim. Hence, we shall merely call attention to the cases, and
indicate in a general way the subject matter toward which it was
sought to apply the maxim.
2. Recovery of Property or Funds of the Government. — The ques-
tion was raised in a suit for the recovery of funds belonging to the
United States and wrongfully obtained by the defendant in United
States V. Mitchell, 26 Fed. 607; Pooler v. United States, 127 Fed, 519.
The recovery of funds or fees alleged to have been illegally retained
by an official was the subject matter in People v. Van Ness, 76
Cal. 121, 18 Pac. 139; People v. Melonc, 73 Cal, 574, 15 Pac. 294;
Pike County v. Cadwell, 78 111. App. 201; Kemp v. Commonwealth,
1 Hen. & M. 85. And in Terre Haute etc. E. E. Co. v. State, 159
Ind. 438, 65 N. E. 401, the subject of litigation was the recovery of
certain surplus profits due the state from a railway company created
by a special statute. The cases in which the adverse possession of
public property was involved will be found in the monographic note
to Schneider v. Hutchinson, 76 Am. St. Eep. 479, while the cases in
which the right to acquire title by adverse possession to lands par-
ticularly devoted to a public use will be found in the monographic note
to Northern Pac. Ey. Co. v. Ely, 87 Am. St. Eep. 775. The recovery
of the proceeds from the sale of lands held for the benefit of the
school fund or of moneys belonging to the school fund were the ques-
tions in State v. Burk, 63 Ark, 56, 37 S. W. 406; Trustees v. Arnold,
58 111. App. 103; Board v. State, 106 Ind. 270, 6 N. E. 623; Des
Moines County v. Harker, 34 Iowa, 84; Kellogg v. Decatur County, 38
Iowa, 524; State v. Farrell, 83 Iowa, 661, 49 N. W. 1038; Parish
Board v. Shreveport, 47 La. Ann. 1310, 17 South. 823; Trustees etc.
v. Campbell, 16 Ohio St. 11; State v. Finn, 102 Mo. 222, 14 S. W.
984; State v. Crumb, 157 Mo. 545, 57 S. W. 1030.
3. Recovery of Taxes, Assessments, Forfeitures and Penalties. —
In State v. City of Columbia (Tenn. Ch.), 52 S. W. 511, it vras
sought to recover certain state taxes collected by the municipality,
and in Stewart's Estate, 147 Pa. St. 383, 23 Atl. 599, the subject
of the litigation was the recovery of a collateral inheritance tax;
while in Commissioners v. Buckner, 48 Fed. 533, a city sought to
recover taxes illegally collected by the United States. Suits for the
recovery of general taxes generally involve the construction of stat-
186 Ameeican State Eeports, Vol. 101. [Idaho,
utes of limitation. The application of the maxim is, however, some-
times raised: See, generally, on the question, San Francisco v. Lun-
ing, 73 Gal. 610, 15 Pac 311; Bell v. Stevens, 116 Iowa, 451, 90 N.
W. 87; Thornburg v. Cardell, 123 Iowa, 313, 95 N. W. 239; Reed v.
Creditors, 39 La. Ann. 115, 1 South. 784; Hood v. New Orleans, 49
La. Ann. 1461, 22 South. 401; Brown County v. Winona etc. Co., 38
Minn. 397, 37 N. W. 949; State v. Pilaud, 81 Mo. 519; Board of
Commissioners v. Story, 26 Mont. 517, 69 Pac. 56; Hoover v. Engles,
63 Neb. 6S8, 88 N. W. 869; Hagerman v. Territory (N. Mex.), 66 Pac.
526; State v. Yellow- Jacket etc. Co., 14 Nev. 220; City of Wilmington
v. Cronly, 122 N. C. 383, 388, 30 S. E. 9; Greenlaw v. Dallas (Tex.
Civ.), 75 S. W. 812; City etc. of San Francisco v. Jones, 20 Fed. 188.
See, also, the monographic note to Richards v. Commissioners of
Clay Co., 42 Am. St. Rep. 655, on the recovery of personal judgments
for taxes. As bearing on the distinction between special assess-
ments and ordinary taxation, see Town of Macon v. Patty, 57 ^tiss.
378, 34 Am. Rep. 451. As bearing on the recovery of city taxes and
assessments in connection with this general subject, see Williamson v.
Joyce, 140 Cal. 669, 74 Pac. 290; Burlington v. Burlington etc. Co.,
41 Iowa, 134; Lexington v. Crosthwaite (Ky.), 78 S. W. 1130;
Miramon v. New Orleans, 52 La. Ann. 1623, 28 South. 107; Memphis
V. Looney, 68 Tenn. (9 Baxt.) 130; Melliugcr v. Houston, 68 Tex.
36, 3 S. W. 249; Hogan v. Ingle, 2 Cranch C. C. 352, Fed. Cas. No.
6583. As bearing on the recovery of assessments for the construc-
tion of a township ditch, see Hartmau v. Hunter, 56 Ohio St. 175, 46
N. E. 577. As to actions for the recovery of penalties and forfeitures,
see People v. Strauss, 97 111. App. 47; Pennsylvania Co. v. State,
142 Ind. 428, 41 N. E. 937; State v. Halter, 149 Ind. 292, 47 N. E.
€65; United States v. One Dark Bay Hurse, 130 Fed. 240.
4. Collection of Debts in Greneral. — In regard to the collection of
ordinary debts due a governmental body, see Board v. Lods, 9 Ind.
App. 309, 36 N. E. 772; United States v. White, 2 Hill, 59, 37 Am.
Dec. 374; Commonwealth v. Hutchinson, 10 Pa. St. 466. The subject
matter in San Luis Obispo Co. v. Gage, 139 Cal. 39S, 73 Pac. 174,
was a chiim of a county against the state for the support of certain
orphans; and in State v. Dunbar's Estate, 99 Mich. 99, 57 X. W.
11U3, the suit was for the recovery of money expended for the niain-
tenaiice of an insane person at an insane asylum.
5. Suits on Official or Other Bonds. — The recovery on official bonds
is geneiiiUy regulated by statute. The applicability of statutes of
limitations to bonds of that character was discussed in Ware v.
Greene, 37 Ala. -194; San Luis Obispo Co. v. Faruum, 108 Cal. 567, 41
Pac. 447; Mason v. Lu<-e, 116 Cal. 232, 48 Pac. 72; San Diego County
V. Dauer, 131 Cal. 199, G3 Pac. 338; Ramsey's Estate v. People, 197 111.
572, 90 Am. St. Rep. 177, 64 N. E. 549; Ware v. State, 74 Ind. 181;
State v. Dyer, 17 Iowa, 223; State v. Ilouderson, 40 Iowa, 242; Board
June, 1901.] Bannock County v. Bell. 187
V. Van Slyck, 52 Kan. 622, 35 Pac. 299; Clements v. Biossat, 26 La.
Ann. 243; Furlong v. State, 58 Miss. 717; State v. Pratte, 8 Mo. 286,
40 Am. Dec. 140; United States v. Eand, 4 Saw. 272, Fed. Cas. No.
16,116. In Straus v. Commonwealth, 62 Ky. 149, a bail bond was the
subject of the litigation, while in Link v. Murphy, 2 Wils. Civ. Cas.
(Tex.), sec. 13, the suit was based on a bond relative to the hire of
a county convict,
6. Rescission of Fraudulent Land Patent. — In State v. Burnett
(Tex, Civ.), 59 S. W. 599, it was held that limitation statutes
do not run against the right of the state to set aside a land patent
obtained by fraud. See, also, monographic note to Schneider v.
Hutchinson, 76 Am. St. Eep. 479.
7. Restraint of Public Nuisance. — The authorities relative to the
right to continue a public nuisance by reason of prescription were dis-
cussed in the monographic note to Mississippi Mills Co. v. Smith, 30
Am. St. Eep. 557. The subject was also adverted to in Eeed v. Bir-
mingham, 92 Ala. 339, 9 South, 161; Eussell v. Lincoln, 200 111. 511,
65 N. E. 1088.
8. Escheat Proceedings. — The general subject of limitations as
applied to the proceeding in escheat was discussed in the following
cases: Male High School v. Auditor, 80 Ky. 336; Hepburn's Case, 3
Bland, 115; Crane v. Eeeder, 21 Mich. 24, 4 Am. Rep. 430; In re
Bousquet's Estate, 206 Pa. St. 534, 56 Atl. 60; Harlock v. Jackson, 3
Brev. (S. C.) 254; French v. Commonwealth, 5 Leigh, 512, 27 Am.
Dec. 613.
9. Quo Warranto Proceedings. — The general effect of the statute
of limitations and of the maxim, "Nullum tempus occurrit regi,"
is treated in the monographic note to McPhail v. People, 52 Am.
St. Rep. 312. We will, however, refer to some of the cases decided
since that time. The distinction in applying statutes of limitation to
quo warranto proceedings as dependent upon the public or private
purposes to be attained by the proceeding was discussed in Catlett
v. People, 151 111. 24, 37 N. E. 855. The general subject was also
treated in State v. Wofford, 90 Tex. 514, 39 S. W. 921. The subject
of laches in connection with quo warranto proceedings to test the
legality of the organization of a drainage district was treated in
People V. Schnepp, 179 111. 305, 53 N. E. 632; People v. Gary, 196 III.
310, 63 N. E. 749. The statute of limitations as applied to an
information in the nature of quo warranto to try title to an office,
was an issue in Place v. People, 87 111. App. 527, 192 111. 160, 61
N. E. 354, while the subject as applied to boards was treated in
State V, Buckley, 60 Ohio St. 273, 54 N. E. 272. The subject of
Inches as applied to quo warranto proceedings to oust a city from
its franchise was discussed in Souls v. People, 205 Til. 61 S, 69 X.
E. 22; State v. Town of Mansfield, 99 Mo. App. 14G, 72 S. W. 471.
Quo warranto proceedings on the relation of the iuhabitants of a
188 American State Eeports^ Vol. 101. [Idaho^
village to oust its trustees, was the subject of People v. Hanker,
197 111. 409, 64 N. E. 253. Quo warranto to inquire into an alleged
usurpation by others of powers granted to an incorporated town was
the issue in State v. Wofford, 90 Tex. 514, 39 S. W. 921. The effect
of laches on quo warranto proceedings to forfeit the franchise of.
a corporation, was discussed in Kellogg v. Union Co., 12 Conn. 7;
People V. Pullman Palace Car Co., 175 111. 125, 51 N. E. 664; Eel
Kiver E. Co. v. State, 155 Ind. 433, 57 N. E. 388; People v. Oak-
land County Bank, 1 Doug. (Mich.) 282; State v. Pawtuxet Turn-
pike Co., 8 K. I. 521, 94 Am. Dec. 123. For a general discussion of
the subject, see the monographic note to State v. Atchison etc. B.
Co., 8 Am. St. Rep. 179.
ANDERSON" V. CREAMERY PACKAGE MANUFACTUR-
ING COMPANY.
[8 Idaho, 200, 67 Pac. 493.]
USURY — Corrupt Intent. — A contract for interest at higher
than the legal rate both before and after judgment, without a cor-
rupt intent on the part of the lender to exact an unlawful rate of
interest, is not usurious, (p. 193.)
USURY is Matter of Intention, and to avoid a contract it
must appear that the lender knew the facts, and acted with a view
of evading the law. (p. 193.)
FIXTURES — Mortgage Lien. — If machinery is purchased and
placed for use in a permanent building under a contract that it shall
remain the property of the seller, or, after such machinery is placed
in the building, a chattel mortgage is given by the purchaser to
the seller on such machinery, a prior real estate mortgage on the
building given by such purchaser is not a prior lien on such ma-
chinery so as to estop the chattel mortgagee from foreclosing his
mortgage, (p. 194.)
J. A. Bagley, for the appellant.
A. Budge, for the respondent.
203 STOCKSLAGER, J. This case comes here for review
from three judgments rendered by the district court of Bear
I^ke county. On the twenty-first day of June, 1899, C. J. An-
derson and Margaret Anderson, defendants, executed to plain-
tiff, John A. Anderson, a promissory note, to wit: "Four years
afl^T date, for value received, we, or either of us, promise to
pay to John A. Anderson $3,100, negotiable and payable at the
^lanufacturers' National Bank of Racine. Wisconsin, in llnito^]
States gold coin, with interest at tlie rate of ton per cent per
Jan. 1902.] Anderson v. Creamery Package Mfg. Co. 189
annum from date until paid, both before and after judgment;
and, if suit be instituted for the collection of this note, we agree
to pay a reasonable attorney's fee. Interest payable yearly."
On the eleventh day of October, 1898, the same parties ex-
ecuted and delivered their promissory note payable to Mattie
Yass, to wit: "Two years after date, for value received, we,
or either of us, promise to pay to Mattie Vass, or order, $400,
negotiable and payable at the Manufacturers' Bank of Eacine,
Wisconsin, in United States gold coin with interest at the
^*^ rate of ten per cent per annum from date until paid, both
before and after judgment, and, if suit be instituted for the
collection of this note, agree to pay a reasonable attorney's fee.
Interest payable yearly." Mortgages were executed by C. J.
Anderson and his wife, Margaret Anderson, to secure the pay-
ment of these notes upon the Anderson Creamery property in
Bear Lake county, recorded, and delivered to John A. Ander-
son and Mattie Vass. The mortgages covered the creamery
machinery fixtures and land. Mattie Vass assigned her note
and mortgage to John A. Anderson before maturity, and on
the twenty-eighth day of January, 1901, he brings suit to fore-
close both mortgages.
On April 14, 1900, C. J. Anderson and Margaret Anderson
executed and delivered their promissory note to the Creamery
Package Manufacturing Company, a corporation, to wit: "For
value received, we jointly and severally promise to pay to the
order of Creamery Package Manufacturing Company, a cor-
poration, the sum of $969, together with interest thereon at
the rate of eight per cent per annum from date until paid,
payable in installments as follows, to wit: Twenty-five dollars
one month from date, twenty-five dollars two months from
date, fifty dollars three months from date, and the sum of one
hundred dollars on the fourteenth day of each and every month
thereafter until the full amount of this note, together with the
interest thereon, has been fully paid ; and, if suit be instituted
for the collection of this note, we, or either of us, promise to
pay a reasonable attorney's fee."
On the same date a mortgage was executed and delivered ])y
the Andersons to the Creamerv Package Manufacturincr Com-
pany to secure the payment of this note on the Anderson Cream-
ery property in Bear Lake county, and at the same time a chattel
mortgage was executed and delivered by the Andersons to the
Creamerv Package Manufacturing Company with property
described, to wit: "One 36x8 15 11. P. boiler, complete, with
190 American State Reports, Vol. 101. [Idaho^
all fittings, including 38, 16 stack and guy Avire; one four hun-
dred-gallon cheese vat ; one four hundred-gallon milk roe. vat
(gal.); one 400-gallon cream vat; one 60-gallon weigh can.
with three P.; one two-pound butter print, with 12 extra
^^° trays; one 14^ Helmer improved cheese press; twenty i4i,.
2x6 gang press hoops and followers; two No. 1 Ideal rotary
pumps; two No. 15 Gosher tanks; seven doz. ^ pint sample
jars; one Canby sulph. acid; one Ideal test measure; one doz.
15 day milk sheets; two doz. jars; five gal. Ilousen's ch. color;
ten gal. Renets; one large packet ferment; one De Haven C.
B. bax hacks; one set 3x4 figures and letters; one revolving
stencil; one Sturvil brush; one curd rake; one curd scrape; one
10x20 hard curd knife; one 10x20 peop curd knife; one 2s curd
pail; one belt 14x^ bandaged; ten yards heavy press cloth; one
bolt 4 oz. cheese cloth; ten yards heavy press cloth; 25 feet 4-ply
rubber belt; 64 feet 2^ 2-ply rubber belt; 100 feet f cut lace;
10 feet 3x4 4-ply hd. rubber suction hose; 150 feet | gal. pipe;
G feet 5 g^^h els; G| gal. tees; G| globe valves; G| to | gal. re-
ducers."
On the fifth day of February, 1901, an action was commenced
in tlie district court of Bear Lake county to foreclose these two
mortgages. On the twenty-fifth day of February, 1901, Hon-
orable J. C. Eich, the district judge, caused to be made and
entered of record the following order: "It is agreed by and
between counsel for all parties wlierein John ]\Iinnig is plaintiff
and C. J. Anderson, defendant, and John A. Anderson is plain-
tiff and C. J. Anderson et al. are defendants, and also where
Creamery Package Manufacturing Company is plaintiff and
C. J. Anderson and Margaret Anderson are defendants, that
the same may be consolidated and tried together, each of the
parties answering tbe complaint of the otliers; and tbe same
is hereby ordered by the court." On the twenty-eighth day of
February, 1901, tbe Creamer}- Package Manufacturing Com-
pany answered the complaint of John A. Anderson, and, after
alleging its corporate existence under and by virtue of the laws
of tbe state of ^lissouri, and alleging its riglit of recovery by
virtue of its mortgages, pleads that the note set out in ])lain-
tiff's first cause of action "is usurious and void as to tbe said
corporation, and provides for an illegal rate of iiitere>t'"; that
said note, by its terms, is not due, and will not be duo before
ibo twenty-first day of Juno. 190-']; hence prematurely brought,
-**^' and cannot be maintained. Answering the second caii^e of
action, usury is alleged. Then follows an allegation tliat the
Jan. 1902.] Anderson v. Creamery Package Mfq. Co. 191
lien of plaintiff, if he have any, is "subordinate to and subject
to the lien of the said corporation.^' J. A. Anderson answers
the complaint of the Creamery Package Manufacturing Com-
pany, averring that the articles described in the chattel mort-
gage are affixed and appurtenant to the building and machinery
known as the Anderson Creamery, and that all of said articles
are covered by each of the mortgages described in his complaint,
and that said mortgages are a lien and encumbrance on said
fixtures and appurtenances, and that plaintiff's two mortgages
are a prior lien and encumbrance upon said goods and chattels.
In the decree it is shown that "findings of fact and conclusions
of law were expressly waived by the respective parties in
writing."
Folios 71-74 of the transcript disclose the court's decision
as follows: "1. That Anderson note for $3,100 is not due, and
action dismissed as to said cause of action. 2. That Anderson
note for $400 and mortgage is prior to and has preference over
Package Manufacturing Company note and mortgage, and that
judgment be entered of foreclosure in accordance with terms
of contract for amount found due, principal, with no interest
or attorney's fees, by reason of usurious contract in note, and
that usual judgment in favor of school fund be entered against
defendant. The court finds there was no fraud or want of con-
sideration. 3. That Package Manufacturing Company have
judgment for foreclosure of real and personal mortgage for
amount found due on contract, both principal and interest, with
$100 attorney's fees and costs. The court also finds the mon-
gaged articles mentioned in chattel mortgage are not fixtures,
and can be removed without injury to the building. 4. The
judgment is that said mortgaged premises be sold according to
law, and after payment of costs of sale, the foregoing judgments
be paid in the order named." Then follow decrees conforming
to the findings or order of the court as above set out. Appellant,
in his brief, relies upon these alleged errors: 1. That the notes
are valid, and the "before and after judgment" '^"^ clauses in
the notes do not make them usurious. 2. If this is a usurious
clause, it found its way into these two notes by mistake. There
was no corrupt agreement between the parties, and no intention
on the part of either party to pay or receive usury, and tliero-
fore the penalty of the statute should not be enforced in tbis
case against the plaintiff. 3. The macliinorv purcba-^ed and
placed in the creamery for permanent use tlicrein became a
fixture, and was covered by tlie $400 and $3,100 mortiragcs.
192 American State Reports, Vol. 101. [Idaho,
In support of his contention that these notes were not usurious,
counsel for appellant calls our attention to section 12G4 of the
Revised Statutes of Idaho, to wit : "Parties may agree in writing
for the payment of any rate of interest on money due or to be-
come due, on any contract not to exceed the sum of one and one-
half per cent per month; any judgment rendered on such con-
tract bears interest at the rate of ten per cent per annum until
satisfied."
By the Session Laws of Idaho of 1899, at page 316, we find
the following amendment: "Parties may agree in writing for
the payment of any rate of interest on money due, or to become
due, on any contract not to exceed the sum of twelve per cent
per annum; any judgment rendered on said contract shall Ix^ar
interest at the rate of seven per cent per annum until satisfied."
Section 1263 of the Revised Statutes provides that "when there
is no express contract in writing fixing a different rate of in-
terest, interest is allowed at the rate of ten cents on the hun-
dred by the year, on money due on the judgment of any com-
petent court or tribunal." By the Session Laws of 1899 (page
316) we find this section amended so as to read: "When there
is no express contract in writing fixing a different rate of inter-
est, interest is allowed at the rate of seven cents on the hundred
by the year on money due on the judgment of any competent
court or tribunal."
The first question presented for our consideration is whctlior
the two notes sued on were usurious. By the record it is shown
that C. J. Anderson contracted to borrow money of John A.
Anderson and Mattie Yass, both residents of Wisconsin ; that
he was to secure them with mortgages on his creamery prop-
ei-ty ^^* in Bear Lake county. He was also authorized by
both parties to have the notes and mortgages prepared, signed,
recorded, and forwarded to them in Wisconsin. The rate of
interest agreed upon was ten per cent per annum. In pursuance
of such agreement, C. J. Anderson went to the law oflice of Al-
fred Budge, had the notes and mortgages prepared by Mr. Budge.
They were recorded, and forwarded as directed. The money
was furnished by John A. Anderson and IMattie Vass for C. J.
Anderson, and they had nothing whatever to do with the exe-
cution of the notes and mortgages, and, so far as the record
shows, never knew that the question of usury would or could
arise. Neither does the record disclose that C. J. Anderson,
cither for himself or for John A. Anderson and Mattie A^ass (if
he was acting for tliem), intended to enter into a usurious con-
Jan. 1902.] Anderson v. Creamery Package Mfg. Co. 193
tract in the execution and delivery of the notes and mortgages
eued on ; hence, if the notes appear to be usurious, it is not shown
that there was any corrupt agreement between the parties to pay
or receive a rate of interest not allowed by our statutes. In
Washington etc. Investment Assn. v. Stanley, 38 Or. 319, 63
Pac. 495, 58 L. R. A. 816, it is said: "But notwithstanding the
contract appears to be usurious on its face, and the natural
inference to be drawn therefrom is that the parties intended
the result of their own acts, yet there is another element which
must attend the practice of usury. It must be with a corrupt
intent, which means that the parties must have knowingly
agreed upon a rate of interest greater than that allowed by law.
But where they have acted under an honest belief that the stipu-
lated rate was recoverable under the law, in which they were
mistaken, it has been held that the penalties of usury would
not be enforced": Thompson v. Jones, 1 Stew. 556; 27 Am.
& Eng. Ency. of Law, 925; Balfour v. Davis, 14 Or. 47, 12
Pac. 89; Burwell v. Burgwyn, 100 K C. 389, 6 S. E. 409;
Tyler on Usury, 110. In Fay v. Lovejoy, 20 Wis. 407, it is said :
*'Usury is a matter of intention, and to avoid a contract on
that ground it must appear that the lender knew the facts, and
acted with a view of evading the law": See Otto v. Durege,
14 Wis. 574, and cases cited; Bank v. Waggener, 9 Pet. 378,
9 L. ed. 1G3. Under ^*^ the authorities above cited, can it
be said that John A. Anderson and Mattie Vass knowingly
and corruptly entered into contracts — the notes and mortgages —
with the intent to collect a rate of interest that would be usury
under our statute? We think not.
The next question presented by the record is the cause of ac-
tion arising on the chattel mortgage given by C. J. Anderson
and wife to the Creamery Package Manufacturing Company,
It is shown that after the execution and delivery of the notes
and mortgages on the creamery property of C. J. Anderson
by said Anderson and wife to John A, Anderson and Mattie
Yass, C. J. xVndorson bought certain machinery of the Cream-
ery Package Manufacturing Company, to be placed in said
creamery building; that such machinery was placed in said
building, and used by C. J. Anderson. C. J. Anderson and
wife executed and delivered their note to the Creamery Pack-
age Manufacturing Company, and at the same time executed
and delivered their chattel mortgage to said company covering
f^aid property. It is also sliown tliat at the same time C. J.
Am. St. Rep. Vol. 101—13
194 American State Reports, Vol. 101. [Idaho^
Anderson and wife executed and delivered to said company
their real estate mortgage as additional security for the pay-
ment of the obligation sued on, said mortgage covering the
creamery property of said C. J. Anderson. At the trial, evi-
dence was offered on behalf of the Creamery Package Manufac-
turing Company for the purpose of showing that the sale of the
property covered by the chattel mortgage was a conditional
one — that the property was to remain the property of tlie
Creamery Package Manufacturing Company until paid for —
and this condition existed up to the time of the execution and
delivery of the chattel mortgage. An objection was interposed
to the admission of this evidence on tlie ground that it was im-
material, which was sustained by the court. It would seem
from the offer and the objection that the property had been
treated as personal in its character by the Creamery Package
Manufacturing Company, as well as Mr. C. J. Anderson, who
was the witness by whom it was sought to prove such contract
of sale, and, we think, was a material issue in the case in deter-
mining the character of the property, whether personal or a
part of the realt}', and hence, whether ^^^ it had become a
fixture. From these facts we conclude that the John A. An-
derson mortgage and the flattie Yass mortgage were prior
liens upon the real estate of C. J. Anderson, and that the said
mortgages did not cover the machinery placed in said building
bought from the Creamery Package Manufacturing Company ;
that said Creamery Package Manufacturing Company is en-
titled to have its chattel mortgage foreclosed, as found by tlie
trial court.
The only error we find in the record is the judgment of the
trial court finding that the John A. Anderson note and the
!Mattie Yass note were usurious. The judgment of the trial
court is reversed in this particular, and remanded for further
proceedings in harmony with the views herein expressed.
Quarles, C. J., and Sullivan, J., concur.
The Xcrrfisfiry Elemntffi of a Usurious Contract are discussed in the
monofrrapliic note to Bank of Newport v. Cook, 46 Am. St. Eep.
178-202. The intent of the parties, as an essential element, is con-
sidered at jiages 179-182 of this note.
Wlini ami .[{jdinst WJunn Fi.rfurrx may, by affreement, retain the
character of personal jirojierty is discussed in the nionofjrafihic note
to Fuller-Warren Co. v. llarter, 84 Am. St. Kep. 877-901. At pajres
888-892 of this note, the suliject is considered in relation to prior
mortfragees of the realtv. See, also, .Jennings v. Vahey, 183 Mass.
47, 97 Am. St. Rep. 409, GG N. E. 598.
Jan. 1902.J Havens v. Stiles. 195
HAVEN'S V. STILES.
[8 Idaho, 250, 67 Pac. 919.]
LEGAL HOLIDAYS. — Ministerial Acts by public officers may
properly be performed on legal holidays, in the absence of express
statutory prohibition, and statutes prohibiting judicial acts on such
days do not apply to such as are merely ministerial, (p. 196.)
LEGAL HOLIDAYS. — Issuance of summons by a clerk of
court on Sunday on a complaint filed on that day is merely a minis-
terial act, and not within the inhibition of a statute prohibiting the
transaction of judicial acts on legal holidays; summons so issued is
valid, (p. 200.)
L. L. Feltham, for the appellant.
J. C. Rice, for the respondent.
251 STOCKSLAGER, J. There are two questions involved
in this appeal : 1. If the clerk of the district court voluntarily
receives and files a complaint in a civil action on Sunday, and
said action was not commenced or instituted for the purpose
of obtaining an order of arrest, writ of attachment, execution,
injunction, or writ of prohibition, and not being a proceed-
ing to recover possession of personal propert}', is it prohibited!
by section 3866 of the Revised Statutes? 2. Is the filing of
such complaint and the issue of summons thereon a ministerial
or judicial act?
It is provided by said section 3866 that: "ISFo court can be
opened, nor can any judicial business be transacted on Sunday
.... except for the following purposes : 1. To give, upon their
request, instructions to a jury when deliberating on their ver-
dict; 2. To receive a verdict or discharge a jury; 3. For the
exercise of the powers of a magistrate in a criminal action or
in a proceeding of a criminal nature; provided, that in civil
causes orders of arrest may be made and executed, writs of
attachments, executions, injunctions, and writs of prohibition
may be issued and served. Proceedings to recover possession
of personal property may be had, and suits for tlie purpose of
252 obtaining any such writs and proceedings may be insti-
tuted on any day.'' It is obvious from the foregoing statutory
provision that the clerk of the court could not be required to
perform any service on Sunday, except wherein it is provided
that certain writs shall issue on that day, or any legal lioliday.
But if he does voluntarily receive and fde the complaint, and
issue the summons, are they necessarily void? We will con-
196 American State Reports, Vol. 101. [Idaho,
Eider this question first. In Ee Worthing^on, 7 Biss. 455, Fed.
Cas. Xo. 18,051, the official syllabus says: "The act of the cir-
cuit clerk in filing the docket transcript of a judgment is a
ministerial act, and not void, though done on a nonjudicial
day; and the judgment creditors thereby acquired a lien upon
the real estate of the judgment debtor, the same as if done on
any other day." The opinion of the court is in harmony with
the syllabus. IMinisterial acts may properly be performed on
legal holidays, in the absence of express statutory provisions,
and statutes proliibiting judicial acts do not apply to such as
are merely ministerial: 20 Ency. of PI. & Pr. 1205. In the
same volume, at page 1197, it is said: "'While at common law,
as has been seen, no judicial act could be done on Sunday, the
authorities are practically unanimous that mere ministerial acts
could be performed on that day, and this would seem to be
the rule at the present time in the absence of any prohibitory
statute." In Pladley v. ]\hisselman, 104 Ind. 459, 3 N. E. 122,
it is said : "As there is neither a statute nor a rule of the com-
mon law prohibiting the sale of property for taxes on Christ-
mas Day, we cannot hold that a sale made on that day is void,
however much we may doubt the wisdom and propriety of mak-
ing sales on that day." Kiger v. Coats, 18 Ind. 153, 81 Am.
Dec. 351, holds that the giving of notice of an award on Sun-
day is valid, it not being an act of common laljor, not a judicial
act. nor one specially prohibited by any statute, and being a
mere ministi^rial act connected witli a judicial proceeding. In
Hanover Fire Ins. Co. v. Shrader, 89 Tex. 35, 59 Am. St. Eep.
25, 32 S. W. 872. 33 S. W. 112. 30 L. R. A. 498, an application
for a writ of error was received by the clerk on Sunday. He,
being doul)tful as to his power to file it, merely noted the fact
and date of its receipt, and upon the next day marked it
"Filed." The ^"^ court, in passing upon the question, says:
"We conclude that tbe application was lawfully filed on Sun-
day, and that the clerk's indorsement is evide?ice of the fact
of it? filing, and iheveforo that we have jurisdiction of the ap-
plication;" Airaiu. in Clough v. Shepherd. 31 X. H. 490: "It
is contcmlrMl that it is illegal at couunon law to make any
writ, or to ihdivcr it to an oHiccr for service' on Suudav. In
]\Iackallcy"s ('as(\ 9 Coke. (iO. it was decided that no judicial
act ought to ho done on Sunday; but ministerial acts niav be
lawfully execut.'d on t'lat dav: ajid this decision is recognized
as tbe liiw in Waite v. llundrcil of Stoke. Cro. Jac. I9G (Com.
Jan. 1902.] Havens v. Stiles. 197
Dig. 'Temps/ B, 3), and in Swann v. Broome, 3 Burr. 1595,
Johnson v. Day, 17 Pick. 106, and Frost v. Hull, 4 'N. H. 153.
The award of judicial writ is a judicial act, and void if done
on Sunday : Com. Dig. 'Temps,' B, 3. But the issuing of orig-
inal process (which is the present case) is merely ministerial:
Com. Dig. 'Temps,' B, 3. Thus, in Waite v. Hundred of Stoke,
Cro. Jac. 496, it is said by Croke J. : 'An original writ or pat-
ent bearing teste upon the Sunday is good enough, for the
chancellor may seal writs or patents upon any day.' And see
Johnson v. Day, 17 Pick. 109, and Bedoe v. Alpe, W. Jones,
156, there cited." In People v. Bush, 40 Cal. 344, the sylla-
bus says: "The performance of a ministerial act by a judicial
officer does not constitute the act itself a judicial proceeding."
In Evans v. Etheridge, 96 N. C. 42, 1 S. E. 633, it is said
the clerk only acts ministerially in issuing the process for at-
tachment. This court, in Glendenning v. McNutt, 1 Idaho,
592, said: "The only remaining question is. Was the appoint-
ment of Glendenning made on a nonjudicial day ? If such was
the case, there would be no question but that it would be valid.
The letters appear to have been issued December 25, 1871, and
the court refused the introduction of any further evidence upon
the subject of the appointment. Had the court allowed the
introduction of the probate court record, it would have shown
that the administrator was not appointed on Christmas, but on
the day following. The act of appointing was a judicial act;
the act of issuing letters merely ministerial. The state does
not prohibit a ministerial act on a nonjudicial day, but only
judicial acts." In ^54 ^y^ji ^,_ q^^q^^ q^ ^Yig_ ^^^^ g;^ ^^ ^y.
246, it is held that "the statute providing that no court shall
be opened or transact any business on any legal holiday does
not prohibit a justice of the peace from issuing a summons on
such a holiday, that being a purely ministerial act." In Glenn
V. Eddy, 51 N. J. L. 256, 257, 14 Am. St. Rep. 684, 17 Atl.
145, we find the following language used by the court: "The
history of the common law and of legislation Avith respect to
Sunday clearly indicates that it owes its exceptional position
to a general sense of its sacred character as a holy day. To no
other day — although many account other days holy — has a like
distinction been accorded. When we compare the course of
the common law and legislation respecting Sunday with tlio
statute now before us, a different treatment is observable. Al-
though some of the days named are accounted holy by many,
198 American State Eeports, Vol. 101. [Idaho.
while others are national anniversaries, or days when public
duties are enjoined on citizens, yet there has been enacted no
prohibition against the pursuit of any business or pleasure.
There is no express prohibition against the service of the pro-
cess of the courts. The direct prohibitions of the statute are
aimed at only two things, viz.: (1) Compulsion to labor, and
(2) the holding of courts on the days specified." In Whipple
V. Hill, 36 Xei). 724, 38 Am. St. Rep. 742, 55 K W. 227, 20
L. E. A. 313 — a very instructive decision — a statute very simi-
lar to ours is construed. The opinion says: "By section 9,
chapter 41 of the Compiled Statutes, it is provided that the
first Monday in the month of September in each year shall here-
after be known as 'Labor Day,' and shall be deemed a public
holiday, in like manner and to the same extent as holidays
provided for in section eight (8) of chapter forty-one (41) of
the Compiled Statutes of 1887. A reference to the calendar
will disclose that the first day of September, 1890, on which
date the attachment in question was issued, was Monday; tliere-
fore, under the foregoing provision, was a public or legal holi-
day. The objection to the issuance of the writ of attachment
in this case on Labor Day is based upon section 38, chapter 19
of the Compiled Statutes, which declares that: 'No court can
be opened, nor can any judicial business be transacted on Sun-
day or any legal lioliday except: ^^^ 1. To give instructions
to a jury then deliberating on their verdict; 2. To receive a
a verdict or discharge a jury; 3. To exercise the powers of a
single magistrate in a criminal proceeding; 4. To grant or
refuse temporary injunction or restraining order.' The legis-
lature, by the section quoted, has prohibited the courts of the
state from being opened, and from the transaction of any ju-
dicial business, with certain well-defined exceptions, on any
day declared by statute to be a public or legal holiday. It will
be ol)served that the prohibition of the statute, so far as the
transaction of business on holidays is concerned, relates to acts
wliirh, in their nature, are purely judicial, and does not apply
to sueli as are merely ministerial. The language of the section
is pUiin and unambiguous, and should not l)e "extended by ju-
dicial interpretation beyond the plain import of the words used.
Had tlio legislature intended to deV)ar the courts or court offi-
cers from performing ministerial acts upon holidays, words
suitable to express such an intention would have been employed.
If the transaction of all legal business was forbidden on such
Jan. 1902,] Havens v. Stiles. 199
days, as is the case in some of the states, we would grant that
the order in question would be void; but the statute fails to so
provide. 'It is the opening of courts and the transaction of
judicial business on legal holidays which the law forbids.' This
intent is clearly manifest. We search in vain for any words
which indicate a different purpose. The issuance or service
of legal process such as a summons, execution, or writ of at-
tachment is merely a ministerial act, and therefore is not within
the inhibition of the above section of the statute, and is valid
although done on a legal holiday." The opinion cites with
approval Glenn v. Eddy, 51 N. J. L. 255, 14 Am. St. Eep. 684,
17 Atl 145; Kinney v. Emery, 37 N. J. Eq. 339; In re Worth-
ington, 7 Biss. 455, Fed. Cas. No. 18,051; Weil v. Geier, 61
Wis. 414, 21 N. W. 246; Smith v. Ihling, 47 Mich. 614, 11
N. W. 408 ; Hadley v. Musselman, 104 Ind. 459, 3 N. E. 122 ;
Whitney v. Blackburn, 17 Or. 564, 11 Am. St. Rep. 857, 21
Pac. 874. Our attention has been called to 5 American and
English Encyclopedia of Law, first edition, page 85, which says :
'''Dies Non. This is an abbreviation of the phrase 'dies ^^^
non juridicus,' universally used to denote nonjudicial days —
days during which the courts do not transact any business; as
Sunday, or the legal holidays." In Hauswirth v. Sullivan, 6
Mont. 203, 9 Pac. 798 — a Montana case, under, we apprehend,
a statute similar to our own — it is held that a summons cannot
be legally served on Sunday; that the service of a summons
is not a judicial act, but that under the statute such service
cannot be made on Sunday. Schwed v. Hartwitz, 23 Colo. 187,
58 Am. St. Rep. 221, 47 Pac. 295, holds that "a notice of a
tax sale is in the nature of a service of a process, and is void
when published only in a Sunday newspaper, where the stat-
ute does not authorize service on Sunday." The opinion says:
■^'Plaintiff, to support her title, relied upon a certain tax sale.
The notice of this sale was published only in a Sunday edition
of the 'Herald-Democrat,' a daily newspaper published in the
city of Leadvillo. The statute provides that 'the treasurer shall
give notice of the sale of real property by the publication thereof
once a week in a newspaper published in tliis county,' etc.
.... The district court decided that the pu])lication in a Sun-
day edition only was not legal notice, and that all proceedings
thereunder were without force or effect. The publication of
the notice of a tax sale is in the nature of the service of pro-
cess. It will not be contended that, outside of a few cases
specifically provided for by statute, service of process on Sun-
200 American State EEroRTS^ Vol. 101. [Idaho,
day in a civil action would be valid in this state, and the rule
that tax sales are invalid if made upon a notice published only
in a Sunday paper is. too well settled to be now open to con-
troversy."
We were not favored with a brief of respondent in this case,
but have carefully examined the authorities to which our at-
tention has boon called, and have quoted liberally from all those
bearing directly on the issues involved in the ease. It seems
to be almost universally held by the courts, with statutes simi-
lar to our own, that filing a complaint and issuing a summons
thereon is a ministerial, and not a judicial, act; hence not pro-
hibiled by statute. The Montana case is in harmony with this
conclusion, and holds directly that such acts of the court offi-
cers are ministerial, but that they are prohibited by the statute
^^'^ of tliat state. If their statute is similar to ours, we cannot
follow that decision. We are clearly of the opinion that under
iho provisions of our statute court officers are not prohibited
from performing such acts as are merely ministerial on a legal
holiday. We think the lower court was in error in sustaining
respondent's motion to strike appellant's complaint from the
files, and in quashing the summons issued thereon.
Case reversed, and cause remanded for furtlier proceedings
in harmony with this opinion, with costs to appellant.
Qunrles, C. J., and Sullivan, J., concur.
Service of X»h/»(o».s oh SidKhni is not a nullity, tliougli it is regarded
ns viiidahk' in Burke v. Interstate Sav. etc. Assn., 25 Mont. 315,
87 Am. St. ]^'p. 410, 64 Pae. 879. The fact that a search-warrant
is issued on Sunday is held not to invalidate it in State v.
Conwell, 96 Me. 171'.' -iO Am. St. Uep. [VA?^, 51 Atl. 873. And a writ
of attachment issued on Sunday is not void: Whipple v. Hill, 36
Neb. 7-:0, 38 Am. St. Kep. 742, 55 N. W. 227. 20 L. H. A. 313. But
SCO tlu' note to CohMuan v. Henderson, 12 Am. Dec. 290. An appli-
cation for a writ of error may be received and lilcd on Sunday: Han-
over Fire Ins. Co. v. Siira.ler. 89 Tex. 35, 59 Am. St. Eep. 25, 32
S. \V. S72. 33 S. \V. 112, 30 \u E. A. 49S. But the publication of
a notice of a tax sale in a Sunday paper has been held void: Schwed
V. llartwitz, 23 Colo. 187, 58 Am. St. Rep. 221, 47 Pac. 295.
March, 1902.] Pioneee Ikkigation Dist. v. Bradley. 201
PIONEER lERIGATION DISTRICT v. BRADLEY.
[8 Idaho, 310, 68 Pae. 295.]
CONSTITUTIONAL LAW— Title of Act.— If the title to an
act indicates, and the act itself actually embraces, two different ob-
jects, diverse in their nature and having no necessary connection,
when the constitution says each statute shall embrace but one object,
the whole act must be treated as void from the manifest inability
of the court to chose between the two, and hold the act valid as
to one and void as to the other, (p. 204.)
CONSTITUTIONAL LAW —Title to Act.— The generality of
the title to an act is no objection to it, so long as it is not made
a cover to legislation incongruous in itself, and which by no fair
intendment can be considered as having a necessary or proper con-
nection with it. (p. 204.)
CONSTITUTIONAL LAW— Title of Act.— If the legislature is
fairly apprised of the general character of an enactment by the
subject expressed in the title, and all its provisions have a just
and proper reference thereto, and are such as by the nature of the
subject so indicated are manifestly appropriate in that connection,
and as might reasonably be looked for in a measure of such char-
acter, the requirement of the constitution that the title of an act
shall embrace but one subject is complied with. (p. 204.)
CONSTITUTIONAL LAW— Title of Act.— It matters not that
an act embraces technically more than one subject, one of which
only is expressed in its title, so long as the subjects are not foreign
and extraneous to each other, but blend together in the common
purpose evidently sought to be accomplished by the act. (p. 204.)
CONSTITUTIONAL LAW— Title to Act.— If the provisions of
a statute all relate, directly or indirectly, to the same subject, have
a natural connection, and are not foreign to the subject expressed
in its title, they may be united in one act. (p. 205.)
CONSTITUTIONAL LAW— Title to Act.— Objections should
be grave, and the conflict between the constitution and the statute
palpable, before the judiciary should disregard a legislative enact-
ment upon the sole ground that it embraces more than one subject
in its title, (p. 205.)
CONSTITUTIONAL LAW — Title of Act. — However numerous
the provisions of an act may be, if they can be, by fair intend-
ment, considered as falling within the subject matter legislated upon
in the act, or neeessarj'- as ends and means to the attainment of such
subject, the act is not in conflict with a" constitutional provision that
no act shall embrace more than one subject which must be em-
braced in its title, (p. 206.)
CONSTITUTIONAL LAW— Title of Act.— A constitutional
provision that no act shall embrace more than one subject which
shall be expressed in its title is not intended to obstruct honest
legislation, or to prevent the incorporation into a single act of the
entire statutory law upon one general subject, (p. 206.)
CONSTITUTIONAL LAW— Title to Act— Subject of Act.—
The entire statutory law of the state upon the subject of irrigation
and the reclamation of arid lands may be incorporated in a single
original or amendatory act un^ler a proper title, (pp. 210, 211.)
202 American State Eeports, Vol. 101. [Idaho,
CONSTITUTIONAL LAW— Consolidation of Statutes by
Amendment. — If two acts have been passed by the legislature on
the same general subject, but with differently worded titles, such
acts may be amended and combined by one act, with a proper title.
(p. 211.)
CONSTITUTIONAL LAW — Assessments According to Bene-
fits— Due Process of Law. — If an irrigation law provides for as-
sessments and also the method and means by which benefits received
may be adjudicated, it is not unconstitutional as taking private prop-
erty without due process of law under the guise of taxation or other-
wise, (p. 212.)
W. E. Borah and J. J. Blake, for the appellant.
J. C. Eice and J. M. Thompson, for the respondent.
^^^ SULLIVAN", J. This action was commenced to obtain
the confirmation of the district court of the third judicial dis-
trict, in and for Canyon county, of the proceedings under and
by which the respondent, the Pioneer Irrigation District, was
organized, and the proceedings had and done by it relative to
the assessment of the real estate within said irrigation district,
and the issuance and sale of certain bonds of said district. The
respondent district having filed its petition for said purpose
in said court, the appellant, being a party in interest, appeared
and demurred to said petition. Said demurrer put in issue the
constitutionality of the statutes authorizing the organization of
irrigation districts. It was overruled, and thereupon the ap-
pellant filed his answer piitting in issue the material allega-
tions of the petition. A trial was had upon the issues thus
made, and the court entered an order and judgment confirm-
ing the incorporation of the respondent, thereby adjudging the
same to be regular and valid, and all proceedings thereunder
valid. During the progress of the trial, the appellant, by nu-
merous objections, raised the question of the constitutionality
of the original act and the act amendatory thereof, under which
tlie.-e proceeding? were had. After judgment, the appellant
made his motion for a new trial, which motion was overruled
Ity tlio court, and this appeal is from said judgment and order.
Tbe questions presented So: decision on this appeal involve the
constitutionality of an act entitled: "An act to provide for a
state engineer, defining his dutie? and regulating his compen-
sation, and to provide for the acceptance by the state of Idaho
from tlio United States of certain lands, and to provide for the
reclamation, occupation and disposal of the same" ^^^ — ap-
proved :March 2, 1809 (.5th Sess. Laws, Finney's ed., 444) —
and an act amendatory thereof entitled: "An act to amend
March, 1902.] Pioneer Irrigation Dist. v. Bradley. 203
sections 2, 11, 22 and 26 of an act entitled 'An act to provide
for the organization and government of irrigation districts, and
to provide for the acquisition of water and other property, and
for the distribution of water thereby for irrigation purposes,
and for other similar purposes,' approved March 6, 1899 ; and
to amend section 9 of chapter 1, and section 16 of chapter 2
of an act entitled 'An act to provide for a state engineer defin-
ing his duties , and regulating his compensation, and to provide
for the acceptance by the state of Idaho from the United States
of certain lands; and to provide for the reclamation, occupation
and disposal of the same,' approved March 2, 1899, and to
provide for the acquisition of right of way for the construction
of canals or reservoirs or other irrigation works over or upon
the lands of the state of Idaho" : Sess. Laws 1901, p. 191.
The first contention is that said amendatory act clearly vio-
lates the provisions of section 16, article 3, of the constitution
of this state, which section is as follows : "Every act shall em-
brace but one subject and matters properly connected there-
with, which subject shall be expressed in the title; but if any
subject shall be embraced in an act which shall not be expressed
in the title, such act shall be void only as to so much thereof
as shall not be embraced in the title." It is contended that
said amendatory act embraces, at least, two separate and dis-
tinct subjects, and that said subjects have been individualized
by former acts of the legislature to wit the subject of the
formation of irrigation districts, and the subject of providing
for the acceptance, by the state, from the United States, of
certain public land, under what is popularly known as the
''Carey act," and the compensation and duties of tbe state en-
gineer; and also the subject of providing for the right of way
for canals upon said and other lands; that said subjects are all
set forth in the title, and are all covered by the act, and that,
therefore, said entire act must fall, as it is not in the power of
the court to say which one of the subjects thus legislated on in
^^"^ said act shall stand, or which shall fall. In support of the
latter proposition counsel cites, among other authorities, Cooley's
Constitutional Limitations, page 178, section 148, where the
author says : "If the title to tlie act actually indicates, and the
act itself actually embraces, two different objects, wben the
constitution says it shall embrace but one, the whole act must
be treated as void, from the manifest impossibility in the court
choosing between the two, holding the act valid as to one. and
void as to the other." And clearly, under the decided weight
204 American State Keports^ Vol. 101. [Idaho,
of authority, if said title contains two distinct subjects, and
both of said subjects legislated upon in the body of said act,
the act is absolutely void, as it is in contravention of said sec-
tion of the constitution. The object and purpose of said con-
stitutional provision is well understood. It was to prohibit the
practice of bringing together into one bill subjects diverse in
their nature, and having no necessary connection; to prohibit
"hodgepodge," or "logrolling" legislation: Cooley's Constitu-
tional Limitations, 172. It was to avoid improper influences
which may result from an intermingling in one and the same
bill such things as have no proper relation to each other: Walter
V. Town of Union, 33 N. J. L. 352. In State v. Eausom, 73
Mo. 78, it is stated that said provision is to prevent conjoining,
in the same bill, incongruous matter, and subjects having na
legitimate connection, or relation to each other, and in no way
germane to the subject expressed in the title. In commenting
on the generality of the title to bills (Cooley's Constitutional
Limitations, 6th ed., 172), the author says: "The generality
of a title is therefore no objection to it, so long as it is not
made a cover to legislation incongruous in itself, and which
by no fair intendment can be considered as having a necessary
or proper connection." In Winters v. City of Duluth, 82 Minn.
127, 84 jS'. W. 788, the supreme court of Miiuiesota in comment-
ing on a section of the constitution of that state which provides
that "no law shall embrace more than one subject, which shall
be expressed in the title," said : "It [said provision] was not in-
tended to embarrass legislation by making laws more restrictive
in their scope and operation than ^^* is reasonably necessary
in order to conserve the purpose for which the constitutional
limitation was adopted; hence it must be liberally construed,
and in a common-sense way," and quotes as follows from State
V. Cassidy, 22 Minn. 324, 21 Am. Rep. 7G5: "If the legislature
is fairly apprised of the general character of an enactment, by
the sulijcct expressed in tlie title, and all its provisions have a
jiir-t and j)roper reference thereto, and are such as, by the nature
of the subject so indicated, are manifestly appropriate in that
eniiiieetion. and as iiiiglit reasonably be looked for in a measure
of such a character, tlie requirement of the constitution is com-
j'liod with. It matters not t1iat the act embraces technically
more than one subject, one of which only is expressed in tlie
title, so that they arc not foreign and extraneous to each other,
but blend toL'etlKT in the cojnmon purpose evidently sought to
be acc«>lnlll!^hed by the law." In commenting upon a constita-
March, 1902.] Pioneer Irrigation Dist. v. Bradley. 205
tional provision like the one here under consideration in State
V. Board of Commrs. of Humboldt County, 21 Nev. 235, 29
Pac. 974, after reciting the purpose of said provision substan-
tially as stated in Cooley's Constitutional Limitations, 172,
the supreme court of Nevada said: "This, then, being the mis-
chief against which this clause of the constitution is directed,
it should be so construed as to correct the evil, but at the same
time not to needlessly thwart honest efforts at legislation. There
is scarcely any subject of legislation that cannot be divided and
subdivided into various heads, each of which might be made the
basis of a separate act, and in which the connection between
them may be made a matter of controversy If the pro-
visions of a statute all relate, directly or indirectly, to the same
subject, have a natural connection, and are not foreign to the
subject expressed in the title, it is permissible to unite them in
the same act The objections should be grave, and the
conflict between the constitution and statute palpable, before
the judiciary should disregard a legislative enactment upon the
sole ground that it embraces more than one subject." And to
the same effect is the decision in the case of Montclair Tp. v.
Eamsdell, 107 U. S. 147, 2 Sup. Ct. Rep. 391, 27 L. ed. 431.
In ^^^ People v. Parks, 58 Cal. 624, it is said: "Provisions of
an act may be numerous; but however numerous, if they can
be, by fair intendment, considered as falling within the subject
matter of legislation, or necessary as ends and means to the
attainment of the subject, the act will not conflict with the con-
stitution.'' This case is cited with approval and quoted from
in People v. Mullender, 132 Cal. 217, 64 Pac. 299. The su-
preme court of Oregon in Investment Trust v. Sears, 30 Or.
388, 41 Pac. 931, 35 L. E. A. 188, said : "We are required to
look to the body of the act, and the provisions therein contained
for the ascertainment of the subject matter. The title is of
but little importance, except to index and fairly indicate the
subject of legislation. ]\Iatters germane to or properly con-
nected with the subject, or matters of detail, have no place in
the title, although the circumstance of their being found there
affords no constitutional reason for rendering the act void or
inoperative The object of this clause of the constitution,
so far as the objection here made to the act is concerned, is to
prevent the combining of incongruous matters, and objects to-
tally distinct, and having no connection nor relation with eacli
other." In State v. Doherty. 3 Idaho. 384, 29 Pac. 855. this
court said: "Section 16, article 3, of the constitution, must be
206 American State Eepoets^ Vol. 101. [Idaho,
given a reasonable construction. It is sufficient if the act treats-
of but one general subject, and that subject expressed in the
title." In Commonwealth v. Brown, 91 Va. 762, 21 S. E. 357,
28 L. E. A. 110, the court of appeals, in commenting on a pro-
vision of the constitution of that state, like the one under con-
sideration, said: "And, on the other hand, it was not intended
to obstruct honest legislation, or to prevent the incorporation
into a single aet of the entire statutory law upon one general
subject." If the entire statutory laAv of this state upon the
subject of irrigation and the reclamation of arid land should
be incorporated into a single act, it would contain, among other
provisions, every provision of the two acts, the constitutionality
of which is called in question on this appeal. As bearing upon
the point under consideration, see State v. County Judge, 2
Iowa, 281. Further citations might be made bearing upon this
^^^ point, as they are numerous, but we deem it unnecessary
to m.ake further citations.
Wo shall now proceed to apply the well-recognized rule, laid
down by the above-cited authorities, applicable to said amenda-
tory act, and ascertain whether it is clear and beyond a doubt
that said act is obnoxious to said provision of our constitution,
for, if there be a doubt as to the constitutionality of said act^
it must be held valid. First, as to the title of said amendatory
act : The first paragraph thereof is as follows : "An act to
amend sections 2, 11, 22 and 26 of an act entitled, 'An act to
])ruvi(le for the organization and government of irrigation dis-
tricts, and to provide for the acquisition of water and other
property, and for the distribution of water thereby for irriga-
tion purposes, and for other and similar purposes,' approved
March 6, 1899.-" This title is sufficiently comprehensive to au-
tliorizc tlie amendment of said sections 2, 11, 22 and 26 of said
original act, and comes clearly within the purview of the pro-
vision of said section of the constitution, so far, at least, as the
lunendment of said four sections is concerned. Section 2, as
amended, prescribes the steps that must be taken in the organ-
ization of an irrigation district, and every provision of said
section is gcnnanc to tliat subject. It prescribes the duties of
\\u> >tate cnLrincer in the organization of an irrigation district
as frillows: *'A copy of such map. estimate, and description of
sucli lioiDidarics shall be filed in the office of the state engineer
at least sixty days before the date set for such hearing by the
board of conniy conirnissioncrs. It shall be the duty of said
state engineer to critically examine such map. estimate and
March, 1902.] Pioneee Ierigation Dist. v. Bradley. 207
description of said boundaries, and, if he shall deem necessary,
to verify the same by a careful examination of the proposed
district, and the site of the proposed works; and he shall pre-
pare a report which shall discuss the water supply of the pro-
posed district and the feasibility of the plans submitted for
the reclamation of the lands thereof, and all other features per-
taining to the irrigation of the proposed district. The state
engineer shall submit said report to the board of county com-
missioners at the meeting set for the hearing of ^^^ said peti-
tion for organization. Whenever the state engineer shall, after
having critically examined the plans of said petitioners and
looked into all that pertains to the reclamation of the lands of
the proposed district, report to the board of county commis-
sioners against the organization of such district, said board of
county commissioners shall refuse to further consider such peti-
tion ; but when said engineer shall approve of such organization,
said board of county commissioners may adjourn such hearing
from time to time, not exceeding four weeks in all, and on the
final hearing make such changes in the proposed boundaries as
they may find proper and as are approved by the state engineer,
and shall establish and define such boundaries." Sections 2, 3
and 4 of said act amend sections 11, 22 and 26 of the original
act. It is not questioned but that each and every provision of
sections 11, 22 and 2G, as amended, are germane to the subject
matter treated of, and are necessary ends and means to the at-
tainment of the purpose of said act. The second clause of said
title is as follows: "And to amend section 9 of chapter 1, and
section 2 of an act entitled 'An act to provide for a state en-
gineer, defining his duties and regulating his compensation, and
to provide for the acceptance by the state of Idaho from the
United States of certain lands ; and to provide for the reclama-
tion, occupation and disposal of the same,' approved March 2,
1899." Section 5 of said amendatory act amends section 9
of the original act, and is as follows: "The state engineer shall
inspect, or cause to be inspected, as often as he thinks advisable,
every dam or embanlcment used for holding water in this state,
where the same is more than twenty feet in height; and if, after
anv such inspection, such dam or embankment, in the opinion
of the state engineer, is unsafe, and the life or property liable
to be endangered by reason thereof, he shall order the owner or
owners to repair the same so as to malce it safe; and if such
owner or owners shall neglect or refuse to repair the same after
a reasonable notice to that effect has been given in writing by
208 American State Reports, Vol. 101. [Idaho,
the state engineer, the said state engineer shall report the facts
in the case to the judge of the district court of the district in
^^ which such dam or embankment is situated, who shall, after
hearing such facts, if he deem it necessary for public welfare,
order the water master of the district in which such dam or
embankment is situated, if there be one, if not, the sheriff of
the county, to draw off such water from behind such dam or
embankment, and to keep said water drawn off till such time
as the orders of the state engineer shall be complied with;
provided, that when great damage would result to those de-
pending upon such dam or reservoir embankment for irrigation
if such withdrawal of water were made, and when such im-
pending danger to life and property can be prevented at rea-
sonable expense without such withdraM^al being first made, the
state engineer shall make an estimate of the cost of such neces-
sary repair, and report the same to the district judge, who
shall, if he deem it necessary for the public welfare, order the
board of county commissioners of tlie county in which said
works are situated to make, under the direction of the state
engineer, such repairs as are recommended by said engineer,
and to pay for the same by warrants drawn on the current ex-
pense fund of the county. The county auditor and recorder
shall immediately present a bill of the amount of such expenses
to the person or persons owning or controlling such dam or
cml)ankment, and unless the same is paid within three days
from the presentation of said bill, or as much as shall not be
so ]xiid, shall thereafter become a lien upon the said dam or
reservoir embankment and other irrigation works appurtenant
thereto, wliitli amount sliall be added to the taxes against such
property, and shall be collected in the manner provided by law
for the collection of other taxes." Section 9 of tlie original act
closes with the words "complied with," and the amenuiiicnt
consists of all that follows said words, and begins with the
word "Provided." The amendment is contained wholly in the
])roviso. P,y the first clause of said amended section the state
eii,ain('('r is ro(|uirod to inspect, or cause to be inspected, every
dam or ciiihankineiit used for holding water in the state, where
tlie sanii- is more than twenty feet in heiglit; and if lie is of
the opinion that it is unsafe, lie must order the owner or owners
"^'•■' to repair the same. While tliis provision of said section is
sweeping, and apparently refers to all dams or embankments
us<m1 for holding water in the state, whether for irrigation or
other purposes, the subsequent proxisions of said sections would
March, 1902.] Pioneer Irrigation Dist. v. Bradley. 209
indicate that the legislature had in mind only dams and em-
bankments used to hold water for irrigation; for if the owner
neglects to repair an unsafe dam after the engineer has ordered
him to do so, the engineer must report the fact to the district
court of the irrigation district in which such dam is situated,
who shall, after a hearing, if he deems it necessary for public
welfare, order the water master of such irrigation district to
draw off such water from behind such dam or embankment, and
to keep said water drawn off till such time as ths orders of the
state engineer are complied with; and further on in said sec-
tion the following language is used, "That when great damage
would result to those depending upon such dam, reservoir, or
embankment for irrigation, if such withdrawal of water were
made," etc. Taking all of the provisions of said section to-
gether, it is evident that the legislature, in enacting said sec-
tion, had in mind dams and embankments used for storing
waters for irrigation only, although the words used in the
first provision of said section are sufficiently comprehensive to
include all dams and embankments, whether used for storing
water for irrigation or not. Section 6 of said amendatory act
amends section 16 of said original act, and prescribes some of
the duties of the state board of land commissioners immediately
upon the withdrawal of any land for the state by the depart-
ment of the interior of the United States, under and by virtue
of the provisions of the act of Congress popularly known as the
"Carey act." Said section 16, as amended, is as follows : "Im-
mediately upon the withdrawal of any land for the state by the
department of the interior, and the inauguration of work by
the contractor, it shall be the duty of the board, by publication
once each week in some newspaper of the county in which
said lands are situated, and one newspaper at the state cap-
ital for a period of four weeks, to give notice that said land,
■or any part thereof, as the board in their discretion may ^'^
deem is for the best interest of the state, is open for settlement,
the price for which said land will be sold to settlers by the
state and the contract price at vrhich settlers can purchase water
rights or shares in such works." Section 7 of said amendatory
act amends section 19 of said original act, and it refers to the
construction of irrigation works for the irrigation and reclama-
tion of the land received by the state under the provisions of
said act of Congress, the duties of settlers thereon, the amount
of land that each settler must cultivate and reclaim before
making final proof therefor, the making of such final proof,
Am. St. Rep. Vol. 101—14
210 American State Eepokts, Vol. 101. [Idaho,
and the steps necessary for the settler to take in order to pro-
cure a patent from the United States to the land settled upon.
The last clause of said title is as follows : "And to provide for
the acquisition of right of way for the construction of canals
or reservoirs or other irrigation works over or upon the lands
of the state of Idaho.'^ And sections 8 and 9 of said act pro-
vide the method of procedure for obtaining rights of way for
the construction of canals, reservoirs, and other irrigation works
over and upon lands owned by the state, and come clearly within
that subject, as stated in said subdivision 3 of said title.
It will be observed from the foregoing that all of the pro-
visions of said act have but one general object, subject, or
purpose, and that is the reclamation and irrigation of the
desert or arid lands in the state. We do not think it will be
seriously contended by any lawyer familiar with the irrigation
laws of the state, and the amendatory act under consideration,
that all of the provisions of said act are germane to the sub-
ject of reclamation and irrigation of the desert lands of the
state; and if a complete codification of our laws touching upon
that general subject were made, it must include each and every
of the provisions of the amendatory act under consideration and
above referred to. And, as stated in Commonwealth v. Brown,
91 Va. 7G2, 21 S. E. 357, 28 L. E. A. 110, the provision of the
constitution under consideration was not intended "to prevent
the incorporation into a single act the entire statutory^ law upon
one L^cneral subject." The act in question does not attempt to
do tliat. ''^'^'* It does, however, amend certain sections of prior
separate acts, which acts are not adverse to the general subject
of irrigation, but are congruous, and germane to that subject,
and have a necessary connection therewith. Judge Cooley, in
speaking of the history and purpose of said constitutional pro-
vision, said, "They were to prevent the practice of bringing into
one bill subjects diverse in their nature, and having no necessary
connection." Every provision of said amendatory act referred
to in regard to irrigation districts is connected with the sub-
j<^ct of irrigation. The duties of the state engineer are almost,
if not entirely, connected with the subject of irrigation; and
tlic act, wliicli provides for the acceptance, by the state of Idaho
from the United States, of certain desert lands, and to provide
for their reclamation, occupation, and disposal, is germane to
and connected with the subject of irrigation and the reclamation
of dosiTt laTid ; mid th(^ acquisition of ri^jhts of way over and
upon state lamls for the construction of canals, reservoirs, or
March, 1902.] Pioneer Irrigation Dist. v. Bradley. 211
other irrigation works is not diverse to the subject of irrigation,
but necessarily connected with it. We therefore conclude that
said act embraces but one subject, and matters properly con-
nected therewith, and that said subject is sufficiently expressed
in the title. It clearly shows that the subject of said act is the
reclamation and irrigation of desert or arid land; and the lan-
guage used in the title is sufficient to express that subject. The
title of said act is more of an index of the general subject of
irrigation than said provision of our constitution requires; and
an act must not be held void for that reason.
It has been contended that the court has no authority to
make a title to an act, and that is correct. In the case at bar,
we do not make a title to the act under consideration, but
hold that the title thereto contains but one general subject, and
matters properly connected therewith, and that the act treats
of but one general subject and matters properly connected there-
with, and is a sufficient compliance with said provisions of the
constitution.
^^** It is suggested by counsel for appellant that, where mat-
ters have become the subject of legislation under distinct heads,
and under separate and distinct acts, they are theroby made
separate and distinct subjects, and that such acts cannot be
amended by one bill, as that would be including two subjects
under one title. The suggestion of counsel is correct if the
subjects treated in the separate bills are incongruous and di-
verse to each other. If they are totally distinct, and have no
connection nor relation with each other, they cannot be amended
by one bill; but if they treat of matters that are germane to
the same subject, and might properly have been enacted in
one bill, under one title, and include but one general subject,
they may be amended by one bill. Simply because the legisla-
ture has enacted laws on one general subject by separate and
distinct bills does not prevent a subsequent legislature from
combining such acts into one bill, or amend such separate acts
by one bill with a proper title.
The next contention is that the original district irrigation
act is unconstitutional, for the reason that it fails to require
assessments to be made according to the benefits. Section 11
of the original act requires assessments to be made by acreage,
and not according to the benefits; but that section has been
amended by the amendatory act above referred to, and by its
provisions directs that all assessments must be made according
to the benefits accruing to each tract of land, and it is pro-
212 American State Reports^ Vol, 101. [Idaho,
vided that tlie board of directors of each irrigation district
"shall examine, critically, each tract or legal subdivision of
land in said district with a view of determining the benefits
which will accrue to each of such tracts or subdivisions from
the construction or purchase of such irrigation works; and the
cost of such work shall be apportioned or distributed over such
tracts or subdivisions of land in proportion of the benefits ac-
cruing thereto ; and the amount so apportioned or distributed to
each of said tracts or subdivisions shall be and remain the
basis for fixing the annual assessment levied against such tracts
or subdivisions in carrying out the purpose of this act." Said
section further provides that the proceedings ^^'^ of such board,
in the matters just referred to must be reported to and submitted
to the proper court, with the other proceedings in the organiza-
tion of such district, for the court's confirmation, as provided in
sections 16, 17, 18, 19 and 20 of said act. And, under the
provisions of said sections, anyone owning land in such district
may appear and show that "the cost of the irrigation works of
such district has not been apportioned or distributed in propor-
tion to the benefits accruing to any tract of land in said dis-
trict." It may be that the section of the original act providing
for assessments to pay the cost of constructing or purchasing
irrigation works for a district was unconstitutional, in that it
failed to require them to be made according to the benefits
accruing to each tract of land; but the amendatory act clearly
provides for assessments to be made according to the benefits
accruing to each tract of land in such district, and the action
of tlie board in preparing lists of all real estate in their dis-
trict, l)y which tlie assessments each year shall be made, may
be contested in the district court, on the ground that such lists
are not made with reference to the benefits accruing to each
tract of land. Said amendatory act ]n-ovides, in terms, that
such assossmcnts must be made according to the benefits, and
])rovi(les the procedure or method by which the benefits to each
tract, of land in any irrigation district may be ascertained and
ailjudicaied. As that is done said law is not repugnant to the
]>ro\i>ions of the fourteenth amendment of the federal consti-
tutif'U. ]ir'>l:i!)iting the taking of private property without due
procf.-s nf law under the .cruisc of taxation. It is a well-recog-
nized fact tliat the amount of benefits is not susceptible of th.at
accui-atc di tcnninalif)ii which appertains to a demonstration in
gocuu'tcry. Iiut some roasonahlo means or method must be pro-
vided by which the question of benefits may be adjudicated;
March, 1902.] Pioxeer Irrigation Pist. v. Bradley. 213
and the amendatory act, which takes the place of the original
act under consideration, provides such means. It may be that
in one district an assessment by acreage may be just, and ac-
cording to the benefits, and in another not; and the law must
provide some method whereby the taxpayer may have that ques-
tion ^-* adjudicated, if he wishes to do so, and in that regard
tbe amendatory act is full and complete. That section of the
original act, as amended, is not ^obnoxious to the fourteenth
amendment to the constitution of the United States, as it does
not provide for taking property without due process of law.
The judgment of the lower court must be a.ffirmed, and it
is so ordered. Costs are awarded to the respondent.
Stockslager, J., concurs.
Mr. Cliief Justice Quarles Concurred in the conclusion reached, but
dissented from some of the views expressed by the majority of the
court. He said in part: "1 concur in the conclusion reached, and
think that the judgment appealed from should be afSrmed, not upon
the ground upon which the majority opinion affirms it, but upon
the ground that the proceedings in the matter of organizing the irri-
gation district in question substantially comply with the provisions
of the act of March 6, 1899, entitled 'An act to provide for the
organization and government of irrigation districts, and to provide
for the acquisition of water and other property for the distribution
of water thereby for irrigation purposes, and for other and similar
purposes,' found in acts of 1899, page 408. Tlie suggestion in the
majority opinion that that act is void so far as the provisions thereof
relate to taxation, to my mind, is incorrect
"It is impossible for me to give my assent to the conclusion
reached by my associates that the amendatory act of March 18,
1901, the title to which is set forth in the majority opinion, and
in the syllabus, is constitutional and valid, and does not contra-
vene the provision of section 16, article 3, of our state constitu-
tion. This provision of the constitution not only provides that the
title to an act shall express the subject thereof, but it provides
that 210 act shall relate to more than one subject. My associates
very cleverly, ingeniously, and obligingly make a title for the said
amendatory act, v.-hich is found in the body of the majority opinion,
as follows, to wit, 'An act relating "to the reclamation and irriga-
tion of desert or arid land." ' Now, take the title to said amenda-
tory act, and no such subject is expressed in the title. Under the
provisions of the constitution, the title is a part of the act, and
is inclispensable. The subject must be expressed in the title. It
need not be named in detail, and the title need not index the act.
But it must express the subject. The purview of the act is limited.
■214 American State Eeports, Vol. 101. [Idaho,
however, by the title, as all respectable authority holds. If the
title expresses a subject which is a branch of a general subject,
the legislature is confined to that branch of the general subject
named in the title, and cannot legislate upon other branches of the
same general subject in the act. In my opinion the general sub-
ject of the amendatory act under discussion, and which my asso-
ciates hold to be 'the reclamation and irrigation of desert or arid
land,' is not found in the title to said act."
The Title to Statutes, in respect to their sufficiency within the con-
stitutional requirements, is discussed in the monographic notes to
Bobel V. People, 64 Am. St. Eep. 70-107; Crookston v. County
Commrs., 79 Am. St. Eep. 456-486; Lewis v. Dunne, 86 Am. St. Eep.
267-279. The constitutional requirements are construed liberally: De-
yoe V. Superior Court, 140 Cal. 476, 98 Am. St. Eep. 73, 74 Pac.
28. And generality of title is not fatal: People v. People's etc.
Coke Co., 205 111. 482, 98 Am. St. Eep. 244, 68 N. E. 950; State
V. Tieman, 32 Wash. 294, 98 Am. St. Eep. 854, 73 Pac. 375. A court
will not declare a statute unconstitutional on the ground of the in-
sufficiency of its title if the question is a dou'otful one: Florida etc.
Ey. Co. V. Hazel, 43 Fla. 263, 99 Am. St. Eep. 114, 31 South. 272.
The Constitutionality of irrigation, drainage, and reclamation stat-
utes is considered in Mound Citv Land etc. Co. v. Miller, 170 Mo.
240, 94 Am. St. Eep. 727, 70 S.' W. 721, 60 L. E. A. 190; Matter
of Tuthill, 163 N. Y. 133, 79 Am. St. Eep. 574, 57 N. E. 303, 49
L. E. A. 781; In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St.
Eep. 106, 28 Pac. 272, 14 L. E. A. 755; Lamb v. Eeclamation Dist.,
73 Cal. 125, 2 Am. St. Eep. 775, 14 Pac. 625; Elmore v. Drainage
Commrs., 135 111. 269, 25 Am. St. Eep. 363, 25 N. E. 1010; Beebe v.
Magoun, 122 Iowa, 94, post, p. 259, 97 N. W. 986.
Nov. 1902.] In ee Beickey. 215
IN EE BEICKEY.
L8 Idaho, 597, 70 Pac. 609.]
CONSTITUTIONAL LAW— Carrying Deadly Weapons.— A
statute prohibiting private persons from carrying deadly weapons
within the limits of any city, town, or village in the state, is uncon-
stitutional and void. (pp. 215, 216.)
CONSTITUTIONAL LAW— Carrying Deadly Weapons.— A
statute prohibiting the carrying of concealed deadly weapons is a
proper exercise of the police power, and is valid, but a statute pro-
hibiting the mere carrying of firearms is void, as the right to do so
is guaranteed by the state and national constitutions, (p. 216.)
S. S. Denning, for the petitioner.
M. S. Johnson, county attorney, for the state.
^^^ QUAELES, C. J. The petitioner applies to this court
for a writ of habeas corpus, and in the petition sets forth and
sliows that he is unlawfully imprisoned confined, and restrained
of his liberty by A. W. Kroutinger, sheriff of Nez Perces county,
at the county jail in the county of Nez Perces, in the state of
Idaho; that he is so imprisoned under a commitment which
issued out of the justice's court of West Lewiston precinct, in
the county of Nez Perces, in a criminal action wherein peti-
tioner was convicted upon the charge of carrying a deadly
weapon, to wit, a loaded revolver, within the limits and confines
of the city of Lewiston, contrary to the provisions of the act
of the territory of Idaho approved February 4, 1889 (Sess.
Laws 1889, p. 27) ; and, in accordance with the praj'cr of said
]jetition, the writ was issued, and return thereto duly made by
the said sheriff. From the petition and return it appears that
the only offense charged against the petitioner, of which he
has been convicted, and is now restrained of his liberty, is that
he carried a deadly weapon within the limits of the city of
Lewiston, in contravention of the said act of February 4, 1889.
The second amendment to the federal constitution is in the
following language : "A well-regulated militia, being necessary
to the security of a free state, the right of the people to keep
and bear arms shall not be infringed." The language of sec-
tion 11, article 1 of the constitution of Idaho is as follows:
''The people have the right to l)ear arms for their security and
defense, but the legislature shall regulate the exercise of this
G!)9 j.\cr]-ii of law." Under these constitutional provisions, the
legislature has no power to prohibit a citizen from bearing
216 American State Eeports^ Vol. 101. [Idaho.
arms in any portion of the state of Idaho, whether within or
without the corporate limits of cities, towns, and villages. The
legislature may, as expressly provided in our state constitution,
regulate the exercise of this right, but may not prohibit it.
A statute prohibiting the carrying of concealed deadly weapons
would be a proper exercise of the police powfer of the state.
But the statute in question does not prohibit the carrying of
weapons concealed, which is of itself a pernicious practice,
but prohibits the carrying of them in any manner in cities,
towns, and villages. We are compelled to hold this statute
void. The statute being void, the said justice's court had no
jurisdiction of the subject matter of the action, and the said
judgment of conviction, and the commitment which issued
thereon, and the detention of the petitioner under said com-
mitment and judgment of conviction, are illegal and void.
The said judgment being void, habeas corpus will lie. and
the prisoner should be discharged from custody, and it is so
ordered.
Sullivan, and Stockslager, JJ., concur.
The Carrying of Concealed weapons may be regtilated and pro-
hibited by legislative authority: See State v. Smith, 157 Ind. 241,
87 Am. St. Kep. 205, 61 N. E. 566; Dunstan v. State, 124 Ala. 89, 82
Am. St. Uep. 152, 27 South. 333; Van Buren v. Wells, 53 Ark. 368,
22 Am. St. Eep. 214, 14 S. W. 38; notes to Bliss v. Commonwealth,
13 Am. Doc. 255; Fife v. State, 25 Am. Eep. 561-563. The arms which
the constitution guarantees citizens the right to keep and bear are
such as are needful to and ordinarily used by a well-regulated militia,
and such as are suitable to enable a free people to resist oppression,
prevent usurpation, repel invasion, and the like; Fife v. State, 31
Ark. 455, 25 Am. Kep. 556.
CASES
IN THK
SUPREME COURT
ov
ILLINOIS.
EOBEESON V. TIPPIE.
[209 111. 38, 70 N. E. 584.]
HOMESTEADS — Estate in Land. — A homestead is an estate
in land, and not merely an exemption; and when the interest of the
homesteader does not exceed in value the statutory limit, the home-
stead estate comprises his entire title, leaving no interest to which
liens can attach on which he can convey separately, (pp. 219, 220.)
HOMESTEADS — Basis of Estate. — A homestead estate is
based upon the title of the homesteader, and can have no separate
existence independent of the title which constitutes one of its es-
sential elements and from which it is inseparable, (p. 220.)
HOMESTEADS — Descent of. — Upon the death of the home-
steader, the homestead estate by operation of law devolves upon the
surviving husband or wife for life and upon their child or children
during the minority of the youngest, and the heirs at law take a re-
versionary interest only, expectant upon the termination of the es-
tate for life or for years created by the statute, (p. 220.)
HOMESTEADS — Conveyance of — Husband and Wife. — The
statutory provision declaring that no conveyance of the homestead
shall be valid unless in writing, subscribed by the homesteader and
his wife applies to deeds made by a husband to his wife, and there-
fore a conveyance of a homestead, not exceeding t!ie statutory value,
by a husband to his wife, she not joining therein, is absolutely void
and passes no title, (p. 220.)
HOMESTEADS— Conveyance of— Husband and Wife.— The
amount paid by a wife as a consideration for the conveyance of a
homestead to her by her husband, in which she does not join, as
required by statute, is not a lien, in law or equity upon the land
attempted to be conveyed, (p. 220.)
C. H. Layman, for the appellant.
W. H. Hart, for the appellees.
39 WILKIN, J. On March 27, 1903, appellant filerl her
bill against appellees, who are the children and heirs at law of
(217)
218 American State KEroiiTS, Vol, 101. [Illinois,
Levi Y. Robersou, deceased, to enforce the specific performance
of a contract. The allegations of the bill are as follows: On
September 29, 1889, the appellant, at the age of twenty-nine
years, was married to Levi Y. Roberson, who was then sixty-
one years of age. Each had been previously married and eight
children had been born to the said Levi by his former wife, all
of whom had reached their majority and left home before his
marriage with appellant. The appellant had one child by her
former marriage, and subsequently there was born to her and
the said Levi Y. Koberson a child, which is still living. At the
date of the marriage of appellant and Eoberson he was the
owTier of certain real estate described in the bill, which was at
that time his homestead and continued to be the homestead of
appePiaut and the said Levi Y. Eoberson to the date of his
death, and since that time has continued to be the homestead of
appellant. After the birth of their child the said Eoberson, on
January 5, 1892, for a consideration of five hundred dollars
paid by appellant, executed a warranty deed to her for said
homestead and put her in possession thereof, and she has con-
tinued in such possession since that date, paying all taxes
thereon, and has made valuable improvements thereon. By
the omission of appellant, who was then the wife of the said
Levi Y. Eoberson, to sign said deed, the same was inoperative
to pass the legal title to the land, but the equitable title tliere-
to, by virtue of said deed, was in appellant. The said Levi Y.
Eoberson died January 25, 1903, and left appellant, his widow,
and the appellees, his children and grandchildren, surviving
him, as his only heirs at law. The bill prays that appellant
be vested with the title to said real estate, with a prayer for
general relief.
A demurrer was filed to the bill, and the same was sustained
by the chancellor. Tlie bill was then amended '*^ by adding
the following allegations: Tha.t "the five hundred dollars paid
by appellant for said land was used by the said Levi Eoberson
in repairs and planting an orchard on said land and otherwise
inijirdviii'j it, and in equity appellant was entitled to be reim-
bursed and to have an equitable lien on said land for the same;
that at the liine said Levi Eoberson made said deed he was not
indebted to any person, and said sale was free from fraud or
circumvention of all kinds; that in case specific performance
cannot Iw^ decreod. the court find the amount paid bv appellant,
and lhat a lien he decreed t« exist in her favor against said
lands for tlio same, and if not paid, that the land be sold to
April, 1904.] Eobersox v. Tippib. 219
pay the same." To this bill, as amended, a demurrer was sus-
tained and the amended bill dismissed for want of equity at
the cost of appellant, and from that order she appeals.
The one question presented for our decision is the correctness
of the ruling of the chancellor sustaining the demurrer and
dismissing the bill, which involves the construction to be placed
upon section 4 of chapter 52, entitled "Exemptions": 2 Starr
& Curtis' Statutes, 1874. That section provides, in substance,
that no release, waiver or conveyance of the homestead estate
shall be valid unless the same is in writing, subscribed by the
householder, and his or her husband or wife, etc. It went into
force and effect July 1, 1873, and we have held that prior to
this act the right of homestead was a mere exemption, and
when the liouseholder in whom the exemption existed, conveyed
without the formal waiver of homestead, the effect was to
transfer his title to the land, but so far as it affected the home-
stead right the operation of the deed was suspended until the
exemption was extinguished. But by the act of 1873 the house-
holder became vested with an estate in the land, measured and
defined by the value, and not by the extent or quality, of his
interest in the land or lot, and when the interest of the house-
holder in the premises, whether in fee, for life "^^ or for years,
does not exceed one thousand dollars in value, the homestead
estate comprises and embraces his entire title and interest, leav-
ing no separate interest in him to which liens can attach or
which he can alien distinct from the estate of homestead. The
estate of homestead thus created is based upon tlie title of the
householder, and can have no separate existence independently
from the title, which constitutes one of its essential elements
and from which it is inseparable. Upon the death of the house-
holder, in whom the estate of homestead is primarily vested, the
estate, by operation of law, devolves upon the surviving hus-
band or wife for his life or her life, and upon the children of
the household during the minority of the youngest, and the
heirs at law take a reversionary interest only, expectant upon
the termination of the estate for life and for years, created by
tlie statute. The statute, which declares that no conveyance of
the homestead shall be valid unless the same is in writing, sub-
scribed by the householder and his wife, applies to deeds made
by huslmnds to their wives, and therefore a conveyance of the
homestead not exceeding in value one thousand dollars by a
houseliolder to his wife, she not joining tlieroin and acknowl-
edging the same as required by the statute, is absolutely void
220 American State Eeports, Vol. 101. [Illinois^
and passes no title whatever : Kitterlin v. Milwaukee Mechanics'
Mut. Ins. Co., 134 111. 647, 25 N. E. 772, 10 L. E. A. 220 ;
Anderson v. Smith, 159 111. 93, 42 N. E. 306; Dinsmoor v.
Bowse, 200 111. 555, 65 N. E. 1079. By this bill it is shown
that the homestead estate here involved did not exceed in value
one thousand dollars when attempted to be conveyed. The
deed to appellant was therefore a nullity, conveying no title or
interest in the premises, and at the date of her husband's death
the fee simple title therein vested immediately in his heirs, sub-
ject only to her right of homestead and dower. This being so,
she could have no claim or lien upon the property for the five
hundred dollars invested therein, either in law or in equity. It
cannot be seriously contended that the allegations of the bill are
sufficient to entitle her to the specific performance *^ of a con-
tract or to authorize a decree declaring her the equitable owner
of the land. Her right to recover the amount paid for the
homestead may be a subsisting valid claim against her hus-
band's estate, but that question is not involved in this action.
We entertain no doubt that the demurrer to the amended bill
was properly sustained, and the order dismissing the same for
want of equity, at complainant's cost, must be affinned.
Decree affirmed.
The Conrrj/rtnce of a IJomefitead by one only of the spouses is gen-
erally held void: See the monographic note to .Terdee v. Furbusli, 95
Am. St. Eep. 911, on the effect of a conveyance or encumbrance of
the homestead by one spouse only_. As to whether this rule applies
where the conveyance is by one spouse to the other, see pages 928-
926 of this note.
^pril, 1904.] Heppe v. Szczepanski. 221
HEPPE V. SZCZEPAXSKI.
[209 111. 88, 70 N. E. 737.]
PROBATE COURTS — Jurisdiction. — The probate court in ad-
justing the accounts of executors, administrators, and guardians, has
equitable jurisdiction and may adopt equitable forms of procedure,
(p. 224.)
PROBATE COURTS — Jurisdiction at Subsequent Term. — A
probate court has jurisdiction, at a subsequent term, to set aside an
•order discharging an executor and approving his report reciting the
release of the widow's award, if such release was obtained by fraud,
accident, or mistake, (p. 224.)
PROBATE COURTS— ^Validity of Order Made at Subsequent
Term. — A probate court order made at a subsequent term setting
aside an order discharging an executor and relea.sing a widow's
award, is void as to minor heirs in reviving the claim of the widow
and directing the sale of the minor's interests in land, if the only
showing of notice to the minors necessary to jurisdiction over them,
is a recital in such order that they appeared by guardian ad litem,
whose appointment is not shown by the record, (p. 225.)
JUDICIAL SALES— Heirs as Parties. — If a petition is filed
by an administrator or executor for the sale of land to pay debts,
minor heirs must be made parties, and must be served with sum-
mons, (p. 229.)
JUDICIAL SALES. — Service of Summons on Heirs in a pro-
ceeding by an executor to sell renl estate to pay debts by leaving
a copy for them with the widow, their mother, and informing her of
it;^ contents is void when she is the real, though not the nominal, peti-
tioner, and is acting adversely to the interests of such heirs, (p.
229.)
JUDICIAL SALES — Service of Summons on Heirs. — If a bill
is filed against minor heirs to subject their laud to sale, the service
of summons on them by leaving a copy thereof with the complain-
ant, and informing him of its contents, will confer no jurisdiction
on the court, as to the person of such minors, and the decree of sale
rendered on such service is void as to them. (p. 230.)
SALES — Purchaser With Notice. — A purchaser of a note and
mortgage is chargeable with notice of their fraudulent character if
enough appears of record to put him upon inquiry which could not
have failed to disclose the facts, (p. 231.)
PARTITION — Cotenancy. — Compensation allowed for improve-
ments made by one cotenant without the knowledge of the others
should on partition be so estimated as to inflict no injury upon the
cotenant against whom the improvements are charged, (p. 231.)
A. H. Meades, for the appellants.
A. Tripp, for the appellees.
»« MAGRUDEE, J. By tlie death of the testator, Frank
Szczepanski, on January 10, 1895. his widow and four dauglitcrs
becBjne, as devisees by the terms of his will, the owners each
223 American State Eeports, Vol. 101. [Illinois,
of an undivided one-fifth interest in the lot, described in the
bill herein, and sought to be partitioned. By the subsequent
death of two of the children, who were minors, the appellees,
the two sundving children, also minors, became the owners
each of an undivided six-twentieths of the premises in question,
and the widow, Katharina Obecny, then the wife of Witt Obecny
(formerly Katharina Szczepanski), became the owners of an
undivided eight-twentieths of said lot. Therefore, the widow,
Katharina Obecny, and the appellees, Eosalia Szczepanski, and
Marianna Szczepanski, minors, were ^*^ tenants in common,
owning tlie respective undivided interests above named at the
time of the transactions hereinafter named.
No claims whatever appear to have been filed by creditors
against the estate of the deceased testator, Frank Szczepanski.
The widow's award was fixed by the appraisers at thirteen hun-
dred and thirty dollars, and the whole amount of the personal
property w^as appraised at four hundred and eight dollars and
fifty-two cents. After the personal property, amounting to four
hundred and eight dollars and fifty-two cents, was applied upon
the widow's award, there remained a deficiency of nine hundred
and twenty-one dollars and forty-eight cents. In March, 1897,
the executor made his final report, and attached to the report
was a receipt by the widow for the four hundred and eight dol-
lars and fifty-two cents to be applied on her award of thirteon
hundred and thirty dollars, and also attached to such final
report was a release by the widow of the balance of her aw-ard. to
wit, nine hundred and twenty-one dollars and forty-eight cents.
As a part of tbe receipt and release, so attached to the executor's
final report, the widow assented that such report be accepted
as a final report, and that the executor, Joseph Kucharski, be
discharged from all furtlier duties as the executor of the last
will of her deceased husband. Accordingly, on March 30, 1897,
an order was entered by the court, by the terms of which such
final report was accepted, and the executor was discharged. It
appears from such portions of the record of the probate court
m tlie estate of the deceased testator as were introduced in
evidence, that on March 5, 1897, a written notice to the appel-
lees, bcinL' tlion minors, was drawn by the attorneys of the
executor, to the effect tliat he had filed his final report, and
would, on :\rarch 19th, ask to have the executor discharged
from further service, and the report confirmed. This notice
was served by leaving copies with Kosalia and Marianna Szcze-
panski, the ajipcllees herein, on :\rarch 9, 1897. Section 112
April, 1904.] Heppe v. Szczepanski. 223
of the act in regard to the administration of estates provides
"that no final settlement shall be made and approved by the
court, unless the heirs of the decedent have been notified there-
of, in such manner as the ®'' court may direct": 1 Starr &.
Curtis^ Annotated Statutes , 2d ed., pp. 336, 337, It does not
appear here that this service of notice upon the minor devisees
in person was a service "in such manner as the court may direct,"
it not being shown that the court made any direction upon the
subject. But it is immaterial whether the appellee minors
were properly served with notice of the filing of the final report
and the discharge of the executor or not, because the final order
of March 30, 1897, was favorable to the minors, in that thereby
the unpaid portion of the widow's award, to wit, nine hundred
and twenty-one dollars and forty-eight cents, which was a
claim against the estate, was released at the same time when
the executor was discharged. The estate of the minors was
thereby relieved from liability for said portion of the widow's
award so released.
Subsequently, however, on June 11, 1897, a petition was
filed by the widow, who had then become the wife of Witt Obecny,
and who was a tenant in common in the ownership of the prem-
ises with the minor appellees, to set aside the order dis-
charging the executor, and releasing the balance of the widow's
award remaining after applying the amount of tlie personal
property thereon. Afterward and in pursuance of this petition,
an order was entered by the probate court on June 21, 1897,
vacating the order of March 30, 1897, discharging the execu-
tor, and in such order of vacation it was recited that the widow
should have leave to withdraw her receipt for the balance of
the widow's award upon the ground that the same had been
signed by her by mistake, and it was therein ordered that the
executor proceed to sell the real estate of the deceased to pay
such balance, after presenting to the court a just and true ac-
count of the personal estate, and debts of the deceased, as re-
quired by statute.
1. It is contended on the part of appellees, and it was
found by the court below in its decree, that the order of June
21, 1897, vacating the previous order of **« :March 30, 1897,
was void as having been made at a term subsequent to that
at which the vacated order was entered. After the order of
March 30. 1897, was entered, two terms had passed before the
order of June 21, 1897, was entered, which set aside tlie previous
order dischartrin"; the executor.
224 American State Reports^ Vol. 101. [Illinois,
We are unable to agree with the court below in the view
that the court was without jurisdiction to enter the order on
June 21, 1897, for the reason that it was made at a subsequent
term to the order of March 30, 1897. Undoubtedly, tbe gen-
eral rule is that, after a term has passed, a court has no author-
ity or discretion at a subsequent term to set aside a judgment
or to amend it, except in matters of form, and for the purpose
of correcting clerical errors: Ayer v. City of Chicago, 149 111.
262, and cases referred to on p. 266, 37 N. B. 57, 58. It has
been held by this court in a number of cases that the county
court or probate court in the settlement of estates is vested
with equitable as well as legal powers; and that, in the adjust-
ment of accounts of executors, administrators and guardians,
the county court has equitable jurisdiction and may adopt equi-
table forms of procedure: Millard v. Harris, 119 111. 185, and
cases on p. 198, 10 N. E. 387, 394, Spencer v. Boardman, 118
111. 553, 9 N. E. 330 ; Shepard v. Speer, 140 111. 238, 29 F. E.
718. In the latter case of Shepard v. Speer, it was said, the
probate court, when adjudicating upon matters pertaining to
the settlement of estates, is clothed with authority to exercise
equitable powers like a court of equity. A court of equity
would certainly have power to set aside such an order as that
of March 30, 1897, if the entry of the latter order had been
procured by fraud, or was due in any way to accident or mis-
take. Fraud, accident and mistake are well-establisbed grounds
of equity jurisdiction. The order of June 21, 1897, entered
by tbe probate court, setting aside the previous order, recites
that the receipt and release executed by the widow, giving up
the balance that was due to her upon her award, were so ex-
ecuted by mistake. ^^ The order recites that it appeared to
the court from evidence introduced that the widow signed such
receipt by mistake. Tlierefore, the probate court, in the exer-
cise of it? equitable powers, had a right to set aside and va-
cate the order, discliarging the executor, even though such ac-
tion was taken by it at a subsequent term. In Schlink v. Max-
ton. lo3 111. 417, 38 N. E. 1063, it was held that the probate
court, in the exercise of its equitable jurisdiction, might on
motion at a siibscquent term set aside its own order, allowing
a claim airainst an estat-e, if mistake or fraud had intervened;
and in ihat case it was said: "So, here, although the term of
court, at which an allowanoe was made, has passed, it may,
for >uch cause as would move a court of equity upon a bill
filed^ entertain a mutiun to sut aside the allowance." In Strauss
April, 1904.] Heppe v. Szczepanski. 225
V. Phillips, 189 111. 9, 59 N. E. 560, the cases of Millard v.
Harris, 119 111. 185, 198, 10 N. E. 387, 394, and Schlink v.
Maxton, 153 111. 447, 38 J\^. E. 1063, were referred to and ap-
proved: See, also, Marshall v. Coleman, 187 111. 556, 58 N. E.
628; Tanton v. Keller, 167 111. 144, 47 N. E. 376; Wright v.
Simpson, 200 111. 56, 65 N. E. 628.
It is a matter of doubt, however, although the probate court
may have had jurisdiction to enter the order of vacation at a
subsequent term, whether, when the order of vacation was en-
tered, the court had jurisdiction over the persons of the minors.
The order, vacating the previous order, discharging the execu-
tor and reinstating the claim of the widow for the balance of
nine hundred and twenty-one dollars and forty-eight cents due
upon her award, was against the interest of the minors. It
restored a claim which had been released, and directed that their
land should be sold for the payment of that claim. It was impor-
tant, therefore, that they should have notice. It is true that the
order of June 21, 1897, makes the following recital: "And also
come Eosalia Szczepanski and Marianna Szczepanski, minor
heirs of said deceased, by their guardian ad litem." But it no-
where appears in the record that they received any actual notice
that the order of June 21, 1897, vacating the order discharging
the executor would be applied for. **^ A\Tien a guardian ad
litem is appointed to act for a minor, it must be for a minor
who is a party to the suit. "A guardian ad litem has been
defined to be a person appointed by a court of justice to prose-
cute or defend for an infant in any suit to which he may be a
party": 10 Ency. of PI. & Pr. 616. It is nowhere shown that
these appellees who are minors, and who own twelve-twentieths
of the land ordered to be sold, were made parties by any ser-
vice of any kind. Nor is there any order showing the appoint-
ment of a guardian ad litem to represent them. The order of
June 21, 1897, not only vacated the previous order of March 30,
1897, but it contained also the following order, to wit: "That
Joseph Kucharski, executor of the last will and testament of
said deceased, proceed to sell the real estate of said deceased to
pay such balance," etc. Section 99 of the act in regard to ad-
ministration of estates provides that the widow, heirs and dev-
isees of the testator or intestate, and the guardians of any
such as are minors, etc., shall be made parties : 1 Starr & Curtis'
Annotated Statutes, 2d ed., p. 325. We are inclined to the
opinion that the order of Jime 21, 1897, at least so far as it
directed the executor to make a sale of these premises, was void
Am. St. Rep. Vol. 101—15
226 American State Eepokts, Vol. 101. [Illinois,
as against these appellees for want of jurisdiction over them by
proper service of notice or process. The order of June 21,
1897, does not recite or state that such minors had due notice,
but merely recites that a guardian ad litem, whose appoint-
ment is not shown, came into court when the order was en-
tered. The master found in his report "that the record does not
establish the fact that said Rosalia and Marianna Szczepanski
were served with notice of the presentation of said petition to
withdraw said receipt, and to sell said real estate." In the case
at bar there is no recital of service in the order of June
21, 1897, which cures the failure of the record to show service:
Law V. Grommes, 158 111. 492, 41 N. E. 1080; Burr v. Bloemer,
174 111. 638, 51 N. E. 821; Botsford v. O'Conner, 57 111. 72.
*^^ 2. Independently, however, of any question as to the void
character of the order of June 21, 1897, the record discloses such
facts as make it inequitable to sustain the sale and transfer
made of the interest in the property in controversy, which be-
longed to the minor appellees. The vacation of the order,
which discharged the executor, and the reinstatement of the re-
leased claim of the widow for the balance due upon her award,
were not made in good faith for the purpose of realizing by a
sale an amount of money necessary to pay what was due her.
A scheme was concocted by Theodore H. Schintz, acting with
Katharina Obecny and her husband, Witt Obecny, and her
brother, Kazmierz Kluczynski, which had for it« object the
acquisition of such a title to the interests of the appellees in
this lot, as would enable Schintz to make a loan thereon. When
]\Irs. Obecny and her husband went to consult Schintz on
June 10, 1897, he suggested to them to find someone whom they,
could trust, and she thereupon named her brother, Kluczynski.
On tlie very next day, to wit, June 11, 1897, Schintz, as at-
torney for :\rrs. Obecny, filed a petition for her to set aside the
order by which the ])alance due on her widow's award had been
released and the executor had been discharged. At the same
time, he drew a note for four thousand dollars, and the trust
dt-rd to himself, as trustee, securing the same, upon the whole
of the lot. including tbe interests not only of the appellees, but
nf the widow. IIo t]iereu])on induced Iviuczynski, the widow's
brf)tlier. to sim the note and trust deed, the former being pay-
able to the lattrr's own order and indorsed by himself. Kluczvn-
ski says that he received no money when he signed the note
and trust de,w]. arid that he did not know what he was signing.
He was merely requested to sign such papers a^ would enable
April, 1904.] Heppe v. Szczepanski. 227
his sister and brother in law to obtain some money to put up a
new building upon the lot in question. The trust deed to
Schintz to secure the note for four thousand dollars ^^^ was
dated June 10, 1897, and recorded on June 11, 1897, the
very day on which the petition to set aside and vacate the or-
der of March 30, 1897, was filed. At the time when this trust
deed to Schintz was executed, Kluczynski had no title at all to
this lot, or any portion of it. The record showed that the title
was in Katharina Obecny and her two minor children, the pres-
ent appellees. After the order of June 21, 1897, vacating the
previous order had been entered, and after the trust deed, se-
curing the note for four thousand dollars had been executed and
recorded, then a petition was filed in the probate court by the
executor for the sale of the lot, in order to pay the nine hun-
dred and twenty-one dollars and forty-eight cents due to Mrs.
Obecny upon her award. This petition was filed on Septem-
ber 8, 1897. On October 8, 1897, an order was entered direct-
ing a sale of the property at public vendue for cash, in order to
realize the amount of money to pay the deficiency due upon the
widow's award. After notices published and posted, a sale was
made on ISTovember 12, 1897, of the whole of the lot to Kluczyn-
ski for the sum of eleven hundred dollars. This sale was re-
ported to the probate court, and approved. But the probate
court was evidently imposed upon. The evidence shows clearly
that Kluczynski was not present at the sale, and knew nothing
about it. He did not pay for the purchase of the property to
the executor making the sale the sum of eleven hundred dol-
lars, or any other sum, nor did his sister, Mrs. Obecny, pay any
money. Both she and the purchaser, Kluczynski, swear that
they paid nothing, and knew nothing about the approval of the
sale. There is nothing to show that this eleven hundred dollars
was paid into court, or that any portion of it was credited upon
the widow's claim for the balance of her award. The notice of
the sale announced that the property was unencumbered, and
would be sold subject to the dower and homestead of the widow.
At the time when this announcement was made that the prop-
erty was unencumbered, the trust deed to secure four thousand
dollars to Schintz was on record, but evidently was not regarded
by Schintz, ^^^ who conducted the proceedings, as constituting
an encumbrance upon the property. After the sale was made,
and on November 18, 1897, a deed was executed by Joseph
Kucharski, the executor, alleged to be in pursuance of the sale
at public vendue, to Kluczynski, the pretended purchaser, but
228 American State Reports, Vol. 101. [Illinois,
no money was paid by him for the deed. On the same day. to
wit, November 18, 1897, Kluczynski executed a deed and con-
veyed the premises to his sister, Katharina Obecny. No con-
sideration was paid by Mrs. Obecny to her brother for this
decu. Subsequently, on January 7, 1899, Mrs. Obecny and her
husband conveyed the premises to the executor, Joseph Kuch-
arski. No consideration was paid for this deed by Kucharski.
We regard all the proceedings in the probate court from
June 11th down to the time of the execution of the deed by
Kluczynski to Mrs. Obecny, as having been fraudulent and in-
stituted for the purpose of depriving these appellees of their
interest in this property. In fact there was no executor's sale,
but merely a sliam sale. Tlie fornis of the law were made use of
to put a title in Kluczynski, the brotlier of Mrs. Obecny, who
had executed a mortgage or trust deed upon the property to
Schintz on June 10, 1897, more tlinn five months before the
executor's sale was made to him, as a pretended purchaser. The
whole o))ject of the proceeding was to get some sort of title in
Kluczynski, as purchaser at the executor's sale, so as to connect
him with the trust deed previously executed to Schintz. The
conclusion is warranted by the evidence, that the real party in
interest was Katharina Obecny, acting under the advice and
direction of Schintz. Although the sale was nominally made
to her brother, Kluczynski, yet it was really to her and for licr
benefit, as the property was deeded to her on tlie very day on
wliich the executor made a deed to Kluczynski. She filed tlie
original petition, asking that the order which had discharged
the executor and released her claim against the estate should
bo vacated.
^^■* It is true that the petition for the sale of the property
to pay the balance due upon the widow's award was filed in the
naine of the executor, Kucharski, but it was really filed by ^Vlrs.
Obecny and for her benefit, and the sale was made for her bene-
fit. She was herself the owner of eiglit-twentieths of the prop-
erty which was sold. In buying the property through her
\)r()t!ifT slic was buying eight-twentieths of what already be-
longed to hor. Counsel for appellant, in answer to the charge
that tlio record nowhere shows any payment by Kluczynski to
the executor of tlie eleven hundred dollars bid by him, says in
his brief: "It may have been ])aid by tlie widow giving to such
I'urchas.T a rcc(>ii)t for the aTi;oiint of her award and allowing
ilie puivha-.jr to turn such recrij)t into court." If the pur-
cha^L' mom'v was paid by crediting the same, or a part thereof,
April, 1904.] Heppe v. Szczepanski. 229
upon what was due the widow upon her award, then the widow
was the real purchaser, although the name of her brother was
used as such purchaser. Such credit is only made at a public
sale where the purchaser at the sale owns the debt for which the
sale is made. The property was not sold to pay any debt or
claim which was due to the pretended purchaser, Kluczynski.
If there was a real sale, therefore, it was the duty of Kluczynski
to pay the money and not to turn in a receipt from his sister
for the amount due from her upon her award.
It being true, then, that this was a sale in fact to Mrs. Obecny,
and that the petition to the court for the sale of the property to
pay the balance due on the widow's award was really a petition
by Mrs. Obecny, though filed in the name of the executor, it
necessarily follows that there was no such service in this case
upon the minors as gave the probate court jurisdiction to en-
ter the decree of sale which was entered.
Where a petition is filed by an administrator or executor
for the sale of real estate to pay debts, the heirs must be made
parties, and must be served with summons. Section 103 of the
act in regard to administration ^^^ (1 Starr & Curtis' Annotated
Statutes, 2d ed., p. 329) provides that "the service of summons
shall be made by reading thereof to the defendant, or leaving a
copy thereof at the usual place of abode, with some member of
the family of the age of ten years and upward, and informing
such person of the contents thereof, which service shall be at
least ten days before the return of such summons." The minor
appellees were made parties defendant to the petition for sale,
and summons was issued against them. The return of the
sheriff upon the back of the summons shows that he "served
this writ on the within named Rosalia Szczcpanski and Marianna
Szczepanski by leaving a copy thereof for each of them at tlieir
usual place of abode with Katharina Obecny, a member of tlieir
family of the age of ten years and upward, and informing her
of the contents thereof this ninth day of December, 1897." In
other words, the summons was served upon these two minor dev-
isees and heirs by leaving a copy thereof A\'ith their mother,
vrho was not only a tenant in common with them in the owner-
ship of the premises, but was proceeding adversely against them
for the purpose of subjecting their interest in the premises to
the payment of her widow's award, or rather who was trying
through the machinery of the law to put the title to their in-
terest in her brother, and in herself, for purposes of her own.
230 American State Eeports^ Vol. 101. [Illinois,
This court has held in a number of cases that, where a bill
in cliancery is filed against minors to subject their land to sale,
the service of the summons by the delivery of a copy thereof to
the complainant, informing him of its contents, will confer no
jurisdiction on the court as to the persons of the defendants,
and the decree of sale rendered on such service will be void as
to them: Hemmer v. Wolfer, 124 111. 435, 16 N. E. 652; St.
Louis etc. Min. Co. v. Edwards, 103 111. 472; Lee v. Fox, 89
111. 226; Filkins v. O'Sullivan, 79 111. 524; Clark v. Thompson,
47 111. 25, 95 Am. Dec. 457. In the case at bar, Katharina
Obecny, acting in the name ^*^ of the executor, Kucharski, was
the real complainant in this petition for the sale of this prop-
erty. Indeed, in the petition which she filed for the vacation
of the order of March 30, 1897, in her own name, she asked
that the property might be sold. There was no service upon her
minor children except by leaving a copy of the summons with
her, the real though not nominal complainant in the petition,
and stating the contents of it to her. We do not regard this
service, under the decisions referred to, and upon principle, as
sufficient. Her interest lay in the direction of keeping a knowl-
edge of the filing of the petition from the very children for
whom she accepted service. We are, therefore, of the opinion
that the court acquired no jurisdiction over these appellees to
enter the order of sale against their property.
The only persons who have taken the present appeal, and
who assign errors here, are the appellants, who own the note
and trust deed executed to Schintz, as trustee. The owners of
the second trust deed to Winston are not here complaining.
None of the other defendants below are here complaining. The
only defendants who answered were the holders of the encum-
brances. The executor, Kucharski, the alleged purchaser, Kluc-
zynski, and Mr. and Mrs. Obecny, and Schintz, the trustee, were
all defaulted below. The only parties, therefore, whose rights
can here be considered, are tliose of the appellants, who pur-
chased from Seliintz the note and trust deed executed to him.
The appellants, or their deceased ancestor, George Heppe, claim
that they paid four thousand dollars for this mortgage to
Schintz. It is very certain that he only applied about nineteen
hundred dollars of it toward the erection of the new building
upon tlic promises in question. The appellants cannot be re-
garded as ])urcliasers in good faith without notice of the riglits
of tlie appellees in view of what has already been stated. The
salient facts, wliich liave been set forth, were shown by the rec-
April, 1904.] Heppe v. Szczepaxski. 231
ord in such a way that appellants were affected with *^'' notice
of the scheme, which was concocted to deprive these children of
their property. Appellants must have known, and could not
have helped knowing, that, when they purchased the trust deed
from Schintz, Kluczynski, the maker of that trust deed, had no
title whatever to the property. Exactly when they made the
purchase of the four thousand dollar note is not shown by the
evidence. Counsel says in his brief that they purchased the
note a few weeks after it was executed, but we find no evidence
in the record to show that fact; but even if it was purchased
after the sham sale to Kluczynski, there was enough upon the
record to put them upon inquiry, so that, if they had made
such inquiry, they could not have failed to ascertain the true
character of the proceedings taken in the probate court, the
effect of which was illegally and fraudulently to deprive these
appellees of their property. In other words, the appellants pur-
chased the trust deed to Schintz with notice of its real character.
The improvements, which were put upon this property, were
put upon it by Mrs. Obecny, who owned an undivided interest
as tenant in common with the appellees. This property was the
homestead of the testator, the father of appellees, when he died,
and was occupied as a homestead by the widow and these chil-
dren when the transactions herein narrated occurred. Parties,
purchasing the encumbrance had full notice of the rights of
the appellees from their possession of the property. Where com-
pensation is allowed for improvements, made by one tenant in
common without the knowledge of the others, the compensation
will be estimated so as to inflict no injury on the cotenant
against whom the improvements are charged. It is said here
that the new building, which was erected by Mrs. Obecny upon
these premises benefited the property of these appellees, and
that they should be charged with their proportionate share of
the cost of the improvcnienrs. The cotenant against whom
such improvements are charged will be ^^^ cliarged, not with
the price of the improvements, but only with his proportion of
the amount which at the time of the partition they add to the
value of the premises: Cooler v. Dearborn, 115 111. 509, 4 X. E.
388; Eowan v. Eeed, 19 111. 21. The master, whose report in
this case was confirmed, found that the value of improvements
on the lot in 1897 was fifteen hundred dollars, and that the
value of the lot in 1897 was two thousand five hundred dollars,
making a total amount of four thousand dollars for lot and im-
provements. We are not prepared to say that the evidence does
232 American State Eeports, Vol. 101. [Illinois,
not sustain this finding of the master. Indeed, much of the
testimony shows a greater value of the lot and improvements
than the amount so found by him. But he also finds in his
report that he is unable from the evidence to state the present
value of said premises. Nor do we find any evidence in the
record showing such present value. It is impossible to state,
therefore, the amount which the improvements added to the
value of the premises. This being so, it is impossible to charge
the appellees with their proportion of the amount which, at the
time of the partition, the improvements will have added to the
value of the premises, if, under the facts of this case, they are
justly chargeable with such proportion. As, however, this is
a matter which concerns the appellees and their mother as be-
tween themselves, it is not necessary for us to pass upon it, as
the mother has taken no appeal, and assigned no errors, and is
not complaining of the decree below.
After a careful consideration of the whole record, we are un-
able to say that the chancellor below erred in holding that the
appellees are each the owner in fee of an undivided six-twen-
tieths of the lot described in the bill, free and clear of the lien
of the trust deed, executed by Ivluczynski to Schintz, as trustee,
and also of the lien of the other trust deed herein before men-
tioned.
Accordingly, the decree of the court below is affirmed.
Tlir ^Sufficiency of Serricr of Process on Minors is ronsidered in Kalb
V. GiTinan Sav. etc. Roc, 25 Wash. 349, 65 Pac. 559, 87 Am. St. Ecp.
757, and cases cited in the cross-reference note thereto; monographic
note to Sanford v. E^lwards, 61 Am. St. Kep. 492, on jurisdiction as
affected by defects in the service of process.
The Vncfitinn of Judijmcntfi and decrees on motion when not spe-
cially authorized by statute is the sub.iect of a monographic note to
Furman v. Fnrman, 60 Am. St. Eep. 633-663. Relief in equity from
judgments other than by appellate proceedings is the subject of a
monographic note to Little Eock etc. Ey. Co. v. Wells, 54 Am. St.
Eep. 218-261. And negligence as a bar to such relief is the subject
of a monographic note to Payton v. McQuown, 53 Am. St. Eep. 444-
453. A judgment free from jurisdictional defects cannot ordinarily
be set aside by a court of law after the term when rendered and the
time prescribed by statute; a court of equity, however, may have
such power: Zinc Carbonate Co. v. First Nat Bank, 103 Wis. 125,
74 Am. St. Eep. 845, 79 X. W. 229; Larson v. Williams, 100 Iowa,
110. 62 Am. St. Eep. 544, 63 N. W. 464, 69 N. W. 441. A judgment
void on its face mav be vacated at any time: White v. Ladd, 41 Or.
324. 93 Am. St. Eep. 732, 68 Pac. 739.
famprnfuilion for Tmprnrcmcntf^ made by one cotenant on the com-
mon [irnj.iTtv is disrM:ss('d in the monographic notes to Ward v.
Ward, 52 Am. St. Eep. 924-941; Cleland V. Clark, 81 Am. St. Rep.
April, 1904.] Mallin v. Wenham. 233
185-187. At tlie common law it seems one cannot charge his cotenant
with the value of improvements made upon the premises, unless they
are made with his consent: Gjerstadengen v. Hartzell, 9 N. Dak.
268, 81 Am. St. Eep. 575, 83 N. W. 230; Cosgriff v. Foss, 152 N. Y.
104, 57 Am. St. Kep. 500, 46 N. E. 307, 36 L. E. A, 753. But see Holt
V. Couch, 125 N. C. 456, 74 Am. St. Eep. 648, 34 S. E. 703.
MALLIN V. WENHAM.
[209 m. 252, 70 N. E. 564.]
ASSIGNMENT OF WAGES to be Earned in future under an
existing contract of employment for an indefinite time is not opposed
to public policy, and is valid if made for a valuable consideration
and without fraud, (p. 234.)
ASSIGNMENT OF WAGES — ^Bankruptcy. — A discharge in
bankruptcy does not release a prior assignment of wages to be earned
in future, nor destroy the lien created by such assignment, (p. 236.)
BANKRUPTCY Effect of Discharge in bankruptcy is but a
personal release, and does not exonerate the effects of the debtor
to which a valid lien has attached and which is not expressly an-
nulled by the bankruptcy statute, (p. 238.)
H. H. Eeed, A. E. Urion and A. F. Eeiclimaiiii, for the ap-
pellant.
M. Ives and G. I. Haight, for the appellee.
^^^ EICKS, J. In respect to the first proposition mentioned,
the authorities are ample and conclusive to the effect that an
assignment of wages to be earned in the future, under an ex-
isting employment, is valid. This precise question has fre-
quently been passed upon by the courts of the different states
and of England, and, so far as we are advised, the courts of
dernier ressort have, without exception, upheld such contracts
where they have been for a valuable consideration and untainted
with fraud. The authorities are to the effect that it is not neces-
sary that there be an express hiring for a definite time, but the
existence of the employment at the time of the assignment is
sufficient. In the case at bar, appellant was, and had been for
some time previous, in the actual employ of Armour & Co., at
a fixed price per month. It is true such employment was not
of any definite duration, and appellant might abandon the same
at any time or his employer might discharge him. The subject
matter of tbe contract had but a potential existence, but it was
Buch a property right as might legally be disposed of. The re-
234 Amekican State EEroRTS^ Vol. 101. [Illinois,
marks of the court in Thayer v. Ivellcy, 28 Vt. 19, G 5 Am. Dec.
220, are very pertinent to the subject in hand, and we here nnote
them : "WTien the debtor is in the actual employment of another
and is receiving wages under a subsisting engagement, an as-
signment by him of his future earnings may be made, not only
for the security and payment of a present indebtedness, but for
such advances as he may find it necessary to obtain. ^'^^ This
principle is fully established by the cases to which we were re-
ferred: Weed v. Jewett, 2 Met. 608, 37 Am. Dec. 115; Brackett
V. Blake, 7 Met. 335, 41 Am. Dec. 442; Field v. Mayor of Xew
York,6 N.Y.187,57 Am.Dec.435; Emery v.Lawrence, 8 Cush.151.
The debtor in this case, at the time of his assignment to the claim-
ants, was in the actual employment of the trustees under a sub-
sisting contract, at a given price per day, and had in that man-
ner labored for them for some two or three years previous ; and
though he had the right to leave their employment and they had
the right to discharge him, yet so long as that relation existed be-
tween them we think the authorities are satisfactory in hold-
ing that the claimants were entitled to receive, under that as-
signment, his accruing wages in payment of the advances which
they had made." In support of the above doctrine reference
is made to the following cases: Kane v. Clough, 36 Mich. 436,
24 Am. Ecp. 699; Manly v. Bitzer, 91 Ky. 596, 34 Am. St. Eep.
242, 16 S. W. 464; :\[etcalf v. Kincaid, 87 Iowa, 443, 43 Am.
St. Ecp. 391, 54 X. W. 867.
The second proposition urged by appellant is, that the as-
signment in question is against public policy, and for that rea-
son ought not to be upheld. This question was raised in the
case of Edwards v. Peterson, 80 Me. 367, 6 Am. St. Eep. 207,
14 All. 936, and the court there held such an assignment did
not conlravorie public policy, and quoted with approval from
the ca^c of Smith v. Atkins, 18 Vt. 461, in which case it was
said : ••![ is argued that such contracts are so much against pub-
lic policy that they ought not to be supported, but we think
tlioy arc rather Vieneficial, and enable the poor man to obtain
ere. lit \vhcn he could not otherwise do it, and that without
dotrinir'nt to the creditors." And further, in the Edwards case,
the court say. speaking of an assigimicnt of wages to be earned
in the future: "It cannot be said to contravene public policy:
Smith V. Aikins. IS Vt. 461. The consideration was most
meritorious, and the assignment was not given to delay cred-
itors."' And further: "The true doctrine seems to be, that to
April, 1904.] Mallin v. Wenham. 235
make a grant or assignment ^^^ valid at law, the thing which
is the subject of it must have an existence, actual or potential,
at the time of such grant or assignment. But courts of equity
support assignments, not only to choses in action, but of con-
tingent interests and expectations, and also of things which have
no present actual or potential existence, but rest in mere pos-
sibility only" — citing numerous cases.
Appellant, in this connection, calls attention to the statutes
and exemption laws of this state, and insists that the liberal
provisions made by the legislature for the indigent and poorer
classes indicate the adoption of a broad and liberal public policy
toward the classes named, and that it is the duty of this court
to so construe the law that the class and individuals so favored
by the statute shall be compelled to accept of its beneficent pro-
visions. Such is not the province of this court. The citizens
■of the state have a right to contract, and there is no law for-
bidding one from selling or assigning any property he may
have. A person has the same right to assign his wages that he
has to mortgage his homestead or to mortgage personal prop-
erty that is exempt from execution. The statute provides lib-
eral exemptions, of which a person has the right to avail himself
if he so desires, but if he does not, the courts are powerless to
help him. The duty of the courts in instances of this kind is
well laid down in the case of Carroll v. City of East St. Louis,
67 111. 568 (on p. 579), 16 Am. Eep. 632: "It is the legislative
and not the judicial power in the state that must control and
give shape to its public policy. That power does not pertain to
the courts. They can only observe that policy and apply it to
cases as they arise, without changing or obstructing it." Also
in the case of Frorer v. People, 141 111. 171, it was said (p. 185,
31 K. E. 395, 399, 16 L. E. A. 492) : "Other instances of stat-
utory regulations of private rights are, in lien laws in favor of
homesteaders, mechanics, etc.; limitation laws; the statute of
frauds, and other statutes relating to evidence; laws in regard
to pleadings ; exemption laws and ^^"^ insolvent laws. But these
all relate, not to the power to contract in regard to matters of
general right, but to the remedy for the enforcing of contracts.
as to which the legislature may make such regulations as the
public welfare seems to demand, so long as, under pretense of
regulating the remedy, it docs not impair the" right itself.''
"We also indorse the doctrine laid down in Greenhood on Eiib-
lic Policy (pages 116, 117), as follows: "The power of the
courts to declare a contract void for beine^ in contravention of
236 Ameeican State Eeports, Vol. 101. [Illinois,
sound public policy is a very delicate and undefined power, and,
like the power to declare a statute unconstitutional, should be
exercised only in cases free from doubt. Before a court should
determine a transaction which has been entered into in good
faith, stipulating for nothing that is malum in se, to be void
as contravening the policy of the state, it should be satisfied
that the advantage to accrue to the public for so holding is cer-
tain and substantial — not theoretical or problematical. He is
the safest magistrate who is more watchful over the rights of
the individual than over the convenience of the public, as that
is the best government which guards more vigilantly the free-
dom of the subject than the rights of the state."
The assignment of appellant's wages was simply a lien on
the same so long as he remained in the employ of Armour &
Co. and until the indebtedness secured thereby was satisfied.
Should appellant quit his employment with Armour & Co. he
would by that act destroy the assignment as security, or should
he pay his de])t to Wenham he could not be injured in any way
by his assignment. Thus it will be seen that there is but lit-
tle to support appellant's contention that the assignment was
a harsh and unconscionable bargain. In the case of Kane v.
Clough, 3G ]\licli. 436, 2-i Am. Eep. 599, the assignor made an
assignment "of all the wages that might thereafter become due
to liim from the defendants," and the transaction was upheld.
In tlie case of AVoed v. Jewett, 2 Met. 608, 37 Am. Dec. 115,
the assignment was "for all ^^* sums of money that may now
be duo to me from the Chicopee Manufacturing Company, etc.,
for labor performed in their service," and the court, in con-
eluding its opinion in that case, say: "This was a proper sub-
ject of cojitract or agreement, and when the labor was per-
formed the company were bound to pay according to their im-
dcrtaJving."
The question of usurious interest is not an element in this
onso. hilt if relief is desired to be had against such, appellant
has his proper rcmody. Tlie record, however, discloses that ap-
prllant lias obtained three hundred and forty-two dollars in ac-
tual ea.-h wliieh he has not repaid.
We cannot see that there is anything intrinsically vicious in
an assignment of wages. The assignor, in such case, simply
draws upon his future prospeets to supply present needs, which
iiiav
of The most urgent and pressing character. There is
no law in this state to prevent a poor person from mortgaging
or ple(l,::ing any or every article of property he possesses, as
April, 1904.] Mallin v. Wenham. 237
security for his debts, and such a privilege may be of great
valua On the whole, we see no reason or right for holding the
assignment in question here void as against public policy.
It is next insisted by appellant that because of bankruptcy
proceedings had by him the assignment is unenforceable. This
position, we think, is wrong. The only effect of a discharge in
bankruptcy is to suspend the right of action for a debt against
the debtor personally. It does not annul the original debt or
liability of the debtor. In Bush v. Stanley, 122 111. 406, the
court said (p. 416, 13 N. E. 249, 253) : "The discharge is
analogous, in effect, to the statute of limitations, in so far as
it does not annul the original debt, but merely suspends the
right of action for its recovery." In Pease v. Eitchie, 132 111.
638, this court further said (p. 646, 24 N". E. 433, 434) : "It
is no doubt true that appellant's discharge in bankruptcy oper-
ated as a bar to any action which might be brought to recover
any debt or obligation existing at the time he was declared
^^'"^ a bankrupt, and after-acquired property was exempted from
being taken in satisfaction of any such debts. But if any cred-
itor had a lien or an equitable claim, by mortgage or other-
wise, upon any property of the bankrupt, such right or rights
would remain unaffected by the proceedings in bankruptcy.''
In the case of Edwards v. Peterson, 80 Me. 367, 6 Am. St.
Rep. 207, 14 Atl. 936, an employe had given an assignment of
his wages. Subsequently he filed a petition for discharge un-
der the insolvent law of the state, and in its opinion the court
there said: "The rule laid down by Judge Story in Mitchell v.
Winslow, 2 Story, 630, Fed. Cas. Xo. 9G73, seems to have been
very generally held by all chancery courts in this country. He
says: 'It seems to me a clear result of all the authorities, that
wbenever the parties, by their contract, intend to create a posi-
tive lien or charge, either upon real or personal property,
Avhether then owned by the assignor or contractor or not, or if
personal property, whether it is in esse or not, it attaches in
equity as a lien or charge upon tbe particular property as soon
as the assignor or contractor acquires a title thereto, against the
latter and all persons asserting a claim thereto under him, either
voluntarily or with notice in bankruptcy.' " The language above
quoted is also quoted with approval in the case of Gregg v. San-
ford, 24 111. 17, 76 Am. Dec. 719.
In the case of Champion v. Buckingham, 165 Mass. 76, 42
N. E. 498, it was held that a creditor who has not proved his
debt in bankruptcy is still, after discharge of the debtor, a sub-
^38 American State Eepouts, Vol. 101. [Illinois,
sisting creditor against him to the extent of his debt, which he
is entitled to have paid out of the proceeds of a policy of insur-
ance on the life of the debtor assigned to him by the debtor and
beneficiary to secure subsisting demands in favor of the creditor,
and it Avas said that the discharge did not extinguish the debt
or demand, but that the effect of such discharge is analogous to
that of the bar of the statute of limitations, which only gocd to
bar a creditor's re]nedy and does not wipe out the debt.
^^^ In discussing the right of a creditor to maintain an ac-
tion on a collateral agreement as security after the debt so se-
cured has become barred by the statute of limitations, it was
said in Shaw v. Silloway, 145 Mass. 503, 14 N. E. 783: "If
there is an actual pledge and the debt becomes barred, this does
not give to the debtor a right to reclaim his pledged property.
The debt is not extinguished — the statute only takes away the
remedy: Hancock v. Franklin Ins. Co., 114 Mass. 156. In
case of a mortgage of real or personal estate the security is not
lost though the debt be barred: Thayer v. Mann, 19 Pick. 535.
The rule is the same where there is a lien: Spears v. Hartly, 3
Esp. 81 ; Iliggins v. Scott, 2 Barn. & Adol. 413; In re Bromhead,
16 L. J. Q. B. 355. And there appears to be no good reason
why an independent collateral agreement, given by way of guar-
anty or other security, should not outlive the remedy upon the
dcl)t which it Avas given to secure, under proper circumstances."
Section GTd of the bankruptcy law of 1898 (30 Stats. 564, IT.
S. Comp. Stats. 1901, p. 3449), provides: "Liens given or ac-
cepted in good faith and not in contemplation of or in fraud
upon this act, and for a present consideration, which have been
recorded according to law, if record thereof was necessary in or-
der to impart notice, shall not be affected by this act." In this
case there is no question of notice of the assignment, nor was
it sn(,li a one as required any notice to be given, consequently
we tliiiik tlie assignment in question was one "not alfcctcd by
tlii. act."
Wf tliink ilic (V'cided weight of authority is to the effect that
a liisilmrge nf a debtor in bankruptcy is but a personal release,
ami (lo.s not cxoiicratc tlic effects of the debtor to which a valid
hen lias iitia'':c<] and which is not expressly annulled by the
])rov!<io;i.^ of the bankruptcy act.
Tbi^ a~-iLTiri]onts of error, we think, are without merit, and
thu ju'lj^incnt uf the appellate court should be and is affirmed.
April, 1904.] Supreme Lodge etc. v. Menkhausen. 239
An Assignment of Wages to be earned in the future may be valid:
Metealf v. Kincaid, 87 Iowa, 443, 43 Am. St. Eep. 391," 54 N. W.
867; Millington v. Laurer, 89 Iowa, 322, 48 Am. St. Rep. 385, 56
N. W. 533 J Manly v. Bitzer, 91 Ky. 596, 34 Am. St. Eep. 242, 16
S. W. 464; Edwards v. Peterson, 80 Me. 367, 0 Am. St. Kep. 207,
14 Atl. 936. Compare Steinbach v. Brant, 79 Minn. 383, 79 Am. St.
Eep. 494, 82 N. W. 651; Robinson v. McKenna, 21 E. I. 117, 79 Am.
St. Eep. 793, 42 Atl. 510.
SUPREME LODGE KNIGHTS AND LADIES OF HONOR
V. MENKHAUSEN.
[209 111. 277, 70 N. E. 567.]
BENEFIT SOCIETIES— Murder of Insured.— Although the
beneficiary named in a certificate of a benefit insurance society, who
murders or feloniously takes the life of the insured, cannot recover
the benefit from such society, yet this does not release it from the
payment of such benefit to anyone, in the absence of a contract pro-
vision to that effect, (p. 240.)
BENEFIT SOCIETIES— Murder of Insured.— Heirs at Law
of an insured member of a benefit society, who is murdered by the
named beneficiary are entitled, when named by statute as within
the class of eligible beneficiaries, to recover such insurance, nothing
to the contrary appearing in the contract of insurance, or in the state
law. (p. 242.)
BENEFIT INSURANCE — Parties to Action to Recover. — If
the statute determines the persons entitled to the insurance on the
life of a murdered member of an insurance benefit society, suit to
recover such benefit is properly brought in the names of such per-
sons, and need not be brought by the administrator of the estate of
the deceased member, (p. 242.)
J. M. Hamill and Ashcraft & Ashcraft, for the appellant.
Turner & Holder, for the appellees.
2SO SCOTT, J. The beneficiary named in a benefit certifi-
cate who feloniously takes the life of the insured cannot recover
from the fraternal beneficiary society, and it is now urged that
public policy also requires us to hold that in such a case tliere
can be no recovery by any person whomsoever against such a
society, and that under such circumstances not only is the
certificate void, but the obligation of the society to pay to
anyone whomsoever is canceled and rendered absolutely in-
operative. The cases relied upon by appellant are of two
classes : 1. Where the insured was murdered by the 1)enoficiary
and suit was brought by the criminal or someone claiming
^■iU American State Eepokts, Vol. 101. [Illinois,
through him; and 2. Where the insured was executed in pur-
suance of the sentence of a court of competent jurisdiction for
a crime committed by him or her. Neither class of cases is in
point here. The only reason in favor of appellant's contention
that seems to us of weight is found in tlie fact that the benefi-
ciary might be incited to commit murder by the fact that if
unable to collect the benefit himself it would be payable to some
other person or persons in whose welfare he was interested.
Human experience teaches that those willing to commit murder
and assume the risk of punislunent for the benefit of others are
so few in number tliat consideration thereof becomes well-nigh
inconsequential. But even were it otherwise, if the rule sug-
gested by appellant ^^^ were established, it is perceived that
the society would then prolit by the murder, and an incentive
be created for the destruction of the life of the insured that
the interest of the insurer might be advanced. The contract
between the society and the insured contained no provision ab-
solving the society from liability in the event that she w'as mur-
dered by the beneficiary, and public policy does not require us
to read such a condition into the agreement. If it did, it
would also require us to hold that the beneficiary could not
recover on the policy if the insured was murdered by another
acting independently of and against the desire of the benefici-
ary, because it is within the realm of possibility that such other,
without the connivance or knowledge of the beneficiary, might
conmut the crime solely for the purpose of enriching the latter.
If societies of the character of appellant desire to be protected
from such contingency, that object must be accomplished by a
condition to that elt'cet written into their contracts, failing
wliirh ilie law will not absolve them from liability: Cleaver v.
^luiiial Reserve Fund Life Assn., 1 Q. B. 147;" Schmidt v.
Xorthern Life Assn., 112 Iowa, 41, 84 Am. St. Eep. 323, 83
X. W. SOO. 51 L. II. A. 141. In the absence of a contract to
tliat eU'eet. public policy will not permit the society to appro-
]iri;ite unto itself the fund which it has agreed to pay, merely
becaiise the life of the insured hns been unlawfully taken.
It is suL''L'"'^-h^d. bov.-ovcr, that this certificate was payable
alone to Custav ^lonkhausen, and that no recovei-y can be had
iherfon except by him or by those claiming through him, and
thnt a= he cannot recover no one can recover on the certificate.
"We d,o not re2'ard this a.s a suit upon the certificate. A careful
examination of the declaration leads us to conclude that it is a
April, 1904.] Supreme Lodge etc. v. Menkhausen. 241
suit to recover the benefit, one thousand dollars, which the ap-
pellant undertook, by its constitution and by-laws, to pay to the
person, within certain classes, who should be designated by
Elizabeth Menkhausen, and that the action is upon the obliga-
tion of appellant as evidenced by its constitution ^^^ and by-
laws, and not upon the certificate. These rules or laws of this
organization recite its purpose to be the establishment of a re-
lief fund, from which, upon the death of a member, a benefit
shall be paid to the person designated by the member in the cer-
tificate, and that such benefit may be made payable by the mem-
ber to the wife or husband, the children, grandchildren, parents,
certain other persons of the whole or half blood, or the next of
kin who would be distributees of the personal estate of the
member, in the order above named.
By the act of 1887, which was in force when the certificate
in question was issued, it was provided, in substance, that so-
cieties of the class to which appellant belongs might be organ-
ized for the purpose of furnishing benefits, upon the death of
a member, "to the widow, heirs, relatives, legal representatives
or the designated beneficiaries of such deceased member'' : Laws
1887, sec. 1, p. 205. By the act of 1893, which became efi:ective
a few months after the issuance of this certificate, it was pro-
vided, so far as material here, that payment of death benefits
should be made only to the "families, heirs, blood relations,
afiianced husband or affianced wife of, or to persons dependent
upon, the member': Ilurd's Stats. 1895, c. 73, par. 258. It
will be observed that by the spirit of each of these three enact-
ments the children of the deceased would stand next in order
after the husband or wife.
"L^pon the death of a member, where the person claiming
to be his designated beneficiary is outside of the classes eligible
as beneficiaries of his insurance, the member's heirs at law. wlio
are within such classes, are entitled to the insurance. Tliere
being no selection of a beneficiary authorized to take, tlie fund
goes to them: Palmer v. "Welch, 132 111. 141, 23 X. E. 412;
Alexander v. Parker, 144 111. 355, 33 N". E. 183, 19 L. Pt. A.
187"; Baldwin v. Begley, 185 111. 180, 56 K E. 1065.
We think the correct view to take is, tliat Gustav ]\Ienk-
hausen, by his act in taking the life of his wife, ^^^ placed
himself outside the classes from among whom she might desig-
nate a beneficiary, and he could not tliereafter take the fund,
or any part thereof, either as the beneficiary named in the cer-
tificate or as heir or heir at law of his wife. The situation, so far
Am. St. Rep. Vol. 101—16
242 American State Reports, Vol. 101. [Illinois,
as his rights and those of appellees and appellant are concerned,
we think is precisely the same as though, after the issuance of
this certificate, he had been divorced from Elizabeth Menk-
hausen and she had thereafter died without having any altera-
tion made in the certificate. Under such circumstances he
would have no interest in the certificate, but the proceeds
thereof would be payable to the heirs of the insured, nothing
to the contrary appearing in the certificate, the constitution
and by-laws of the order or the laws of the state under which
it operates: Tyler v. Odd Fellows' Mutual Eelief Assn., 145
Mass. 134, 13 N". E. 360; Schonfield v. Turner, 75 Tex. 324,
12 S. W. 626, 7 L. R. A. 189; Order of Railway Conductors
V. Koster, 55 Mo. App. 186.
In Schmidt v. Northern Life Assn., 112 Iowa, 41, 84 Am.
St. Rep. 323, 83 N. W. 800, 51 L. R. A. 141, and in Cleaver v.
Mutual Reserve Fund Life Assn., 1 Q. B. 147, growing out
of the Maybrick murder, the same question was presented as
is now before us. In both cases it was held that the fact that
the beneficiary had murdered the insured did not cancel the
obligation of the insurer, and in both cases the administrator
of the insured was allowed to recover on the theory that the in-
surer held the fund in trust for the estate of the deceased ; and
in the case at bar it is argued that if there could be a recovery
at all, it m.ust, under the authority of these cases, be in the
name of the administrator of the estate of Elizabeth Menk-
haupcn. It is very evident that neither the constitution and
b3^-laws of appellant nor the laws of this state contemplate the
payment of a benefit of this character to the administrator of
tlie member. The purpose is to pay it directly to the benefi-
ciary, whoever that may be, without the intervention of ad-
ministration; and where, as here, the law determines the per-
sons who are entitled to the fund, the -**^ suit is properly
broiiglit in the names of such persons, and in this case there
is no occasion for a resort to equity.
Rule 15 (47 X. E. vii) of this court indicates the manner
in wliich a hr\cf and argument should be prepared for presenta-
tion licro. Counsel on both sides of this controversy have
failed to ohpervo tliat rule. A compliance therewith is" ma.te-
rially helpful in the consideration of causes in this court.. It
should be followed in ever}- instance.
The judgment of the appellate court will be affirmed.
April, 1904.] Stebbins v. Petty. 243
If the Beneficiary in a Life Insurance policy kills the insured, he
cannot recover from the insurance company; but the insurance money
forma a part of the estate of the insured, and may be recovered by
his administrator, as though no beneficiary had been designated:
Schmidt v. Northern Life Assn., 112 Iowa, 41, 84 Am. St. Kep, 323,
83 N. W. 800, 51 L. E. A. 141.
STEBBINS V. PETTY.
[209 111. 291, 70 N. E. 673.]
DEEDS — Cancellation — Agreement for Support. — If a grantor
conveys land and the consideration is an agreement by the grantee
to support, maintain, and care for the grantor during the remainder
of his or her natural life, and the grantee refuses or neglects to
comply with the contract, the grantor may, in equity, have a decree
rescinding the contract and deed and reinvesting him with the title
to the land, on the ground that the contract was fraudulent in its
inception, (p. 243.)
DEEDS — Agreement for Support — Cancellation as Against
Grantee's Heirs. — If a grantee performs her agreement to support a
grantor during his lifetime, given as a consideration for his deed,
the failure of the minor heirs of such grantee to perform the agree-
ment after her death is not ground for cancellation of the deed,
unless there is an unsatisfied judgment in some prior proceeding re-
quiring such heirs to perform the grantee's agreement, (p. 245.)
DEEDS FOR SUPPORT— Reservation of Lien — Foreclosure. —
If a deed executed in consideration of the grantee's agreement to
support the grantor during his lifetime, reserves a lien on the land
to secure performance of the agreement, the grantor may foreclose
such lien against the grantee's heirs who fail to perform such agree-
ment, (p. 245.)
Matthews & Anderson, for the appellant.
J. Orr, W. E. Williams, guardians ad litem, and Williams
& Grote, for the appellees.
2»3 SCOTT, J. It has been frequently held in this state
that where a grantor conveys land, and the consideration is an
agreement by the grantee to support, maintain and care for
the grantor during the remainder of his or her natural life,
and the grantee neglects or refuses to comply with the contract,
the grantor may, in equity, have a decree rescinding the con-
tract and setting aside the deed and reinvesting the grantor
with the title to the real estate: Frazier v. Miller, IG 111. 48;
Oard V. Oard. 59 111. 46; Jones v. Xeoly, 72 111. 449; Kusch v.
Kusch, 143 111. 353, 32 X. E. 2G7; Cooper v. Gum, 152 III.
244 AsiERiCAN State Reports, Vol. 101. [Illinois,
471, 39 N, E. 267; McClelland v. McClelland, 176 111. 83, 51
N. E. 559 ; Fabrice y. Von der Brelie, 190 111. 460, 60 X. E.
835. A careful examination of these cases leads to the con-
clusion that the intervention of equity in such cases has been
sanctioned in this state on the theory tluit the neglect or refusal
of the grantee to comply with his contract raises a presump-
tion that he did not intend to comply with it in the first in-
stance, and that the contract was fraudulent in its inception,
wherefore a court of equity will not permit him to enjoy the
conveyance so obtained.
It appears from this bill that the grantee herein complied
with her contract during her lifetime. Nothing that she did,
therefore, raises any presumption that she was animated by any
fraudulent purpose in accej)ting this conveyance. Joseph
Petty, her husband, has no present interest in this real estate,
as tlie grantor resen-ed to himself a life estate therein. Iler
heirs are the appellees, 2^"* Estill ]\Iiller Petty and "Marion
Luther Petty, aged, respectively, three and six years. Will the
failure- of these minor children to properly maintain the grantor
after the death of the mother lead to the conclusion that the
contract was fraudulent in the beginning?
We are referred by appellant to tlie cases of Patterson v.
Patterson, 81 Iowa, ^626. 47 X. W. 768, Knutson v. Bostrak,
99 Wis. 469, 75 N. W. 156, Gloeke v. Glocke, 113 V^is. 303,
89 X. W. 118, 57 L. E. A. 458, Wanner v. Wanner, 115 Wis.
196, 91 X. W. 671, and Lockwood v. Lockwood, 124 Mich. 627,
83 X. W. 613, as authorities for the proposition that appellant
has the same remedy in equity against these minors that he
would have had against their mother had she survived and re-
fused or neglected to perform her contract. Xone of these
cases are cases where the rights of the grantee had passed to
minors.
In Creo v. Shorfy, 138 Ind. 354, 37 X. E. 787, however, the
grantee, until his death, supjiorted the grantor, and thcroartcr
the grantor olitaincd relief of the character here souglit against
tlie minor heirs of the grantee. In Indiana, as well as in the
other states, excepting Illinois, where the courts of last resort
have coiisidrTcd cftntracts of this character, so far as we have
bci.'n referred to their decisions by ap]iellant, the relief is ])laced
on tlie tlicory that the agreement to maintain will be read into
the deed a? a condition subsequent, and tliat tlie latter instru-
ment will be construed as tliougb the granting portion th.ereof
were followed by words stating that it is made u[)on condition
Aprilj 1904.] Stebbins v. Petty. 245
that the grantee support and maintain the grantor so long as
the latter lives. Under such a construction it is apparent that
whenever support and maintenance were not furnished to the
grantor, no matter what occasioned the default, unless perform-
ance was excused by him, he could enforce the condition. We
have never so construed these deeds.
In the case of Gallaher v. Herbert, 117 111. 160, 7 N. E.
511, where the father conveyed a quarter section of land to his
son in consideration of natural love and affection and two hun-
dred dollars ^^^ per year to be paid to the father as long as
he lived, this court expressly refused to hold that the convey-
ance was upon a condition subsequent, saying: ''The words
'upon condition' do not occur, and there are no other words of
equivalent meaning." No reason appears why a different con-
struction should be given Dy us to a deed which requires sup-
port and maintenance to be thereafter furnished instead of
money to be thereafter paid.
These minor children, having no legal guardian, in the ab-
sence of some legal proceeding resulting in a decree or judg-
ment providing for the enforcement of the contract of their
mother against their property, which remains unsatisfied, can-
not be held, in equity, either to have refused or neglected to
comply wdth the contract of their mother. They are peculiarly
the wards of a court of chancery. We must recognize the fact
that without the aid of a court of competent jurisdiction their
property cannot be applied to the satisfaction of this obliga-
tion, nor can they themselves elect to refuse to perform this
contract; nor, in the absence of a decree or judgment against
them, can it be said that they have negligently failed to com-
ply with the terms of the agreement. It will scarcely be urged
that the failure of two children of tender years to furnisli sup-
port to the grantor, under the circumstances disclosed by this
bill, raises a presumption that the contract had its inception in
a fraudulent purpose on the part of their mother.
Tlie grantor is entitled to support and maintenance as in
tlie lifetime of Emily Petty. A lien securing the same is re-
served by the deed, and he has the undoubted right to foreclose
that lien if he so elects.
The decree of the circuit court will be affirmed.
A Conveyance hy Parents to a son in consideration of liis eovonant
to snpport them may be rescinded by n court of equity, upon a breach
of the covenant: See the monographic note to Ecroyd v. Coggeshall,
246 Americax State Eepokts, Vol. 101. [Illinois,
79 Am. St. Eop. 764. Consult, also. Lewis v. Lewis, 74 Conn. 630,
92 Am. St. Rep. 240, 51 Atl. 854; Eiehter v. Eichter, 111 Ind. 456,
12 N. E. 698; Leonard v. Smith, 80 Iowa, 194, 45 N. E. 762; Mans-
field V. Mansfield, 92 Mich. 112, 52 N. W. 290; Woolcott v. Wooleott
(Mich.), 95 N. W. 333: Wanner v. Wanner, 115 Wis. 196, 91 N. W.
671.
BETDLER v. TvTXG.
[209 111. 302, 70 N. E. 763.]
PAETT-WALLS — Construction of Agreement for Repairs.^
A party-wall agjrecment, providing that if repairs are necessary after
one of the parties has used or paid for his portion of the wall, the
expense shall be borne equally by the parties to the extent that they
are each using the wall, imposes no obligation on the first-named
party to repair or pay for repairs to any portion of the wall not used
by him. (p. 247.)
PARTY- WALLS — Partial Destruction — Liability for Danger-
ous Condition. — If a party-wall is built partly on the land of an
adjoining owner, its partial destruction and weakening by fire do
not devest the builder of his interest in the land of such adjoining
owner so as to render the latter the sole owner of that part of the
wall standing on his land, and make him liable for its dangerous
condition, (p. 249.)
PARTY- WALLS— Liability for Dangerous Condition.— A part
owner of a party-wall who negligently permits it to stand after its
partial destruction and weakening bv fire is liable to another part
owner who is using part of the wall for damages resulting to the
latter from a falling of another portion of the wall in which he has
no interest and is not using, (p. 250.)
NEGLIGENCE —Dangerous Standing Walls —Notice of.— An
adjoining owner, who has notified the owner of a dangerous standing
wall of its insecure condition, is not guilty of contributory negli-
gence in not taking moans to prevent such wall from falling, to his
injury and resulting damage, (p. 250.)
TRIAL. — Listruction Given, stating correct al.stract propo-
sitions of Ifiw, are not ground for reversal of the judgment, unless
they tend to mislead the jury. (p. 250.)
PARTY-WALLS —Right to Prevent Injury from Falling of.—
Tf a party-wall agreement gives to one party no right to use or
'1;;;1 v.ith any portion of the wall until he shall have paid one-half
(if the cost tliereof. he has no right to go upon the adj()ining prem-
ises for the purpose of bracing a portion of the wall, not used or
jiiiid iuT liy him, to jirevent it from failing upon his propcrtv. (p.
2.n.)
TRIAL" Instructions.- The fnet that an essential clement is
lacking in one i ri'^truct i.m is not ground for a reversal of the judg-
if sueu eh'inent is supplied by other instructions, (pp. 252,
I'lcl.t.
W. L. Laccy. for the aiipollants.
A. nuniplircy and T. Bates, for the appellee.
April, 1904.] Beidlee v. King. 247
^^"^ SCOTT, J. The principal controversy in this case is
determined by a construction of the party-wall contract. Ap-
pellants' position is, that after appellee had paid for and used
a portion of the party-wall she was then liable, under that con-
tract, for a portion of the repairs to the entire wall, and that,
it being her duty to assist in keeping the entire wall in repair,
she cannot recover damages resulting from a failure to repair
the party-wall. The language of the contract in reference to
repairs is as follows: "And the parties hereto further covenant
and ^^^ agree, that if it shall become necessary to repair or
rebuild any portion of said party-wall or walls before said party
of the second part shall use or pay for her portion of the same,
the expense or cost of such repairing or rebuilding shall be
borne by the said first party; and further, if it shall become
necessary to so repair or rebuild after the said party of the sec-
ond part shall have used or paid for her portion of said wall,
then and in that event the cost of such repairing or rebuilding
shall be borne equally by the parties hereto, to the extent that
they are each using said wall."
Under the above contract it is said that appellee was bound to
pay her share of any repairs to any portion of said party-wall
in the proportion which tiie part of the wall that she had paid
for bears to the entire wall; that is, if she was using the north
one-half of the wall or had paid one-half of the cost thereof,
she would then have paid for and would have been the owner
of the one-fourth part of the entire wall, and if the south half
of the wall needed repairs she would be liable for one-fourth of
the expense thereof, even though she owned no part of that half
of the wall. The intention of the parties was that she should
pay for this wall and use the same in such portions thereof as
she might elect from time to time, and we think the contract
simply means that she should be liable for repairs to that por-
tion of the wall for the one-half of which slie had paid. The
language is, "the cost of which repairing or rebuilding shall
be borne equally by the parties hereto, to the extent that they
are each using said wall." This means that each shall pay
one-half of the cost of the repairs to that portion of the wall
which is being used by both; that throughout that extent o!"
the wall which was used by both, each should bear one-half of,
the expense of repairing or rebuilding. The preceding language
plainly shows that Beidler was to pay all the necessarv expenses
of repairing or rei)uilding that portion of the wall which ap-
248 American State Eeports^ Vol. 101. [Illinois,
pellee ^^^ had not used and to the cost of which she had con-
tributed nothing.
In Mickel v. York, 175 111. 62, this court said (p. 70, 51 X.
E. 848, 851) : "The contract in this case expressly provides
that plaintiff, before making any use of or joining any building
to the wall, shall pay or secure to the defendant York the full
moiety or one-half part of the value of the said party-wall, or
so much thereof as shall be joined thereto or used, which value
shall be the cost price at the time when such wall is to be used.
The contract expressly provides, further, that York shall build
that wall. By the terms of that contract York retained the
ownership of what he had placed upon the plaintiff's land
until he should be paid for it, and he had a right to have it
supported on the land of plaintiff under this contract. The
wall having been built on the plaintiff's land under this agree-
ment, which amounts to a license with an interest, is not thereby
incorporated and lost in the land or lot, but remains a separate
property, still belonging to the builder until he is paid therefor.
York, therefore, was the owner of this wall, and was liable for
any and all damage for failing to maintain it in a safe con-
dition."
In the case at bar appellants were the sole owners of the
entire wall, except that part thereof which was being used by
appellee, and the rights and liabilities of the parties were the
same with respect to that portion of the wall of which appel-
lants were the sole owners as they would have been witli refer-
ence to the entire wall had appellee neither purchased nor used
any ])art thereof. The cases referred to by appellants, of the
class of City of Peoria v. Simpson, 110 111. 294, 51 Am. Rep.
GSo. liolding that where the same duty rested upon two parties
to mako rc])airs Ijoth may be said to be guilty of negligence if
the r<'])airs be not made, are not in point.
It is then urged that as tliis contract does not expressly pro-
viile for rcljuihling the "whole'' of this wall it cannot be re-
liuilt under this party-wall contract, and -^^^ that upon its
u.-efulness as a party-wall being destroyed by the fire, it was
as though tl:e wall itsflf was absolutely and entirely destroyed,
am! ai»])rllp(. licoanif the owner of that portion thereof which
siood on licr land, and that consequently the injury resulted
fi-oiu lier failure to care for lier own property. It is unnoces-
sarv hero to determine Aviiother the wall can be rebuilt under
this contract a^ a party-wall.
April, 1904.] Beidler v. King. 249
The contract contains this language : "Provided always, never-
theless, and on the express condition that the said party of the
second part, her heirs, administrators, executors or assigns, as
aforesaid, before proceeding to join any building to the said
party-wall, or to any part thereof, and before making use
thereof or breaking or cutting into the same, shall pay unto
the said party of the first part, his heirs or assigns, the full
moiety or one-half part of the full value of the whole of said
party-wall if used, or of such portion thereof as shall be used
as a party-wall by said party of the second part, which value
shall be the cost price at the time when such party-wall is to
be used by said party of the second part." We think this lan-
guage applicable to this wall so long as it stood, and that the
owner of the wall would not be deprived of his title to that
portion thereof which stood on the ground of appellee merely
by the fact that the wall had become so weakened by the fire
as to be no longer fit for the purpose for which it was originally
built.
So construing this contract, we come now to a consideration
of the error assigned upon the refusal of the court to instruct
the jury to find for the defendants at the close of all the testi-
mony. In support thereof it is said that there is no evidence of
negligence on the part of the defendants, and that there is no
testimony showing the exercise of due care by the plaintiff.
The general rule is, tbat where a fire has occurred in a
building, destroying the inner portion of the building and
leaving the walls, if the owner negligently permits '^^^ the
walls to remain standing, and tliey thereafter fall, the owner
of the wall is liable to the adjacent owner for the resulting
damage: 1 Wood on Law of Xuisanccs, sec. 225; Schwartz v.
Gilmore, 45 111. 455, 92 Am. Dec. 227; Mickel v. York, 175 111.
62, 70, 51 N. E. 848, 851.
In this case the attention of appellants was called to the
condition of this wall immediately after the fire, on the morning
of October 17, 1899. They did not begin the work of taking
down the wall until the evening of October 20, 1899, and then
only with a force of three men, when a force greater in num-
ber than fifteen could have been used in the work. Tiie evi-
dence is that the wall could have been taken down in from four
to five days with a suilicient force of Avorlviuen — tliat is, witli as
many men as could have worked thereon. It also appears tiiat
after the work of taking down the wall began, it was suspended
one day under the direction of the fire department of the city
250 American State Eepoets, Vol. 101. [Illinois,
of Chicago. It fell on the 28th. It is apparent that if a force
of men in proper numbers had been put to work on the wall at
the earliest possible moment, it would have been entirely re-
moved before the day on which it fell. The longer the wall
stood the greater was its inclination to the east. Had a stronger
force been at work earlier, the upper portion of the wall would
have been sooner removed, and the tendency of the wall to lean
to the east would thereby have been lessened. Some evidence
was offered tending to show the difficulty about securing men
to work on this wall on account of the danger of its falling.
This evidence does not show such an effort to secure the neces-
sary men to take down this wall as the emergency required of
men of ordinary prudence. A small force was kept continually
at work, except on the day when they were interfered with by
the fire department. We are not able to say from the evidence,
as a matter of law, that by the exercise of measures such as a
reasonably prudent man would have used, men sufficient in
number to take the wall down at the earliest possible moment
could not have been obtained. ^^^ The evidence tended to show
negligence on the part of appellants.
It is then urged that inasmuch as appellee took no steps her-
self to prevent the wall falling, beyond notifying appellants of
its dangerous condition and demanding that they remove it,
she was guilty of contributory negligence. Laying aside for
tlie moment the question of her right to do anything with the
wall, we think she was entitled to assume that the appellants,
whose attention has been called to the condition of the wall,
would perform their duty in respect thereto, and we cannot
therefore hold, as a matter of law, that she was guilty of con-
tributoTV negligence.
The luToiiiptory instruction was properly refused.
Tlio eleventh instruction given on the part of appellee is an
abstrar-t proposition of law. By it the jury are informed that
until ]:]mily A. King exercised her right to pay for and use some
poriirin of the wall, Jacob Boidlor and his heirs were the own-
ers and had exclusive control thereof, and that she had no right,
title or interest in the said wall, or any part thereof. This in-
struction mi,^ht better have Ix'on made to apply alone to that
part of the wall to the cost of which she had not contributed
and wliich slio was not using. This instruction, however, is an
accurate statement of tlie law, and while it mi,iiht properly have
boon refused, we do not think it could have misled the jurv, and
unless it appears to the court that such instructions tend to mis-
April, 1904.] Beidler v. King. 251
lead the jury, the judgment will not be reversed on account of
the giving thereof : Healy v. People, 1G3 111. 372, 45 N". E. 230.
Appellee's eighteenth instruction was to the effect that if de-
fendants' portion of the wall, as a result of their negligence, fell
and pulled over a portion of the wall which plaintiff had paid
for and was using, which portion last mentioned would not
otherwise have fallen, she may recover the entire amount of
damages sustained by her, resulting from the fall of the entire
portion of the ^^^ wall which fell upon her premises. It is
said that this instruction ignores the fact that Mrs. King's part
of the wall may have been weak, defective and out of plnmb and
may have contributed to the fall. We do not think it obj.Gction-
able on this account, as it plainly appears from the evidence
that the portion of her wall which came down in the catastrophe
was carried to the east, prior to the fall, by the progress of the
wall above it in that direction.
Instructions numbered 12, 13, and 14, and one given by the
court of its own motion, are all criticised for the same reasons.
No. 13 is in the following language: "The court instructs the
jury that as a matter of law the plaintiff had no right to go on
or touch the portion of said' east ^^1all of said building not paid
for by her, for the purpose of preventing the same from fall-
ing, or for any other purpose."
The first and second objections to these instructions are dis-
posed of by what we have already said. The third is, that ap-
pellee had the right to enter upon the premises, if necessary,
and also upon any part of the wall, for the purpose of l)r;u:iiig
the wall to prevent the same from falling upon bor pro})erty.
We are referred in this connection to the case of Field v. Loiter.
118 111. 17, 6 X. E. 877. That case deals with the riglit of
entry for the ]>urpose of reinforcing a party-wall under the
contract then before the court., and the contract there is held
to give one party the right of entry upon the ])remisGS of tho
other for the purpose of strengthening the foundation of tho
wall. No such provision is found in the contract in the caso
at bar. The portion of the wall to which these four instruc-
tions applied was the sole property of appellants. Tho contract
gave to appellee no right to use or deal with the wall, or anv
portion thereof, in any manner, until she should have paid
one-half the cost thereof. These instructions were corrort.
Appellants rely upon the case of Factors otc. Ins. Co. v. Wor-
lein, 42 La. Ann. 1046, 8 South. 4:M. Tliat case, howovor,
turns upon ^■'•'* certain provisions contained in the Louisiana
252 American State Eeports, Vol. 101. [Illinois^
code which are not found in our statute, and the case is there-
fore of no assistance in determining this question.
Tlie objection urged to instruction No. 15 is, that it ad-
vised the jun- that Mrs. King was entitled to recover if thfr
wall fell through the negligence of the defendants, and omitted
the qualification that it must appear that she was in the exer-
cise of due eare. This question does not arise upon this in-
struction, which is to the effect that the fact tliat Emily A.
King paid for and used a portion of the cast wall does not bar
a recovery for damages occasioned by the fall of another portion
of that wall resulting from negligence on the part of the de-
fendants. This objection is also made to instruction Xo. IS,
which we have heretofore considered in regard to a diiTercnt
complaint made to the action of the court in giving the same.
In the instruction given by the court of its own motion, in
which all the elements which must be found by the jury t-o
warrant a verdict in favor of the plaintiff are stated, they are
told that to warrant a recover)^ they must ''find that the plain-
tiff was without fault," and in an instruction given on the part
of the defendants is this language: "And if the jury believe^
from the evidence, that the plaintiff was guilty of negligence
contrilmting to the injury, then the plaintiff cannot recover
and the juiy should find for tlie defendants." It is a familiar
rule that tlie instructions must be considered as a series. In
considering the same objection which is now made, this court in
Wenona Coal Co. v. Holmquist, 152 111. 581, said (p. 591, 38
X. E. 0-l(), 949) : "3. Error in the instructions given for
tlic ]»laintiff is complained of. The first instruction is ob-
jected to upon the ground that it does not require the exercise
of ordinary care l)y the plaintiff. This is true if the instruc-
tion is cfuisidcrcd by itself, but all the instructions, both those
given for the plaintiff and those given for the defendant, must
iio coiisideivd together as *"•'* one charge. Upon examining
the instnictJons given for the defendant, we find that five of
!hiMn. fli>iii)ctly and in express terms, say to the jury that tlie
j)laintifr caniidi rceoNcr unless lie shows tliat at the time of the
iiijiii-y 111- \va.- in llic exercise of ordinary care. Plaintiff's first
i 11,-1 nut inn, altltougli unnecessarily announcing the now ob-
solete (Idctrine of eoniparativo negligence, is not inconsistent
witli the five instructions of the defendant, which require the
exercise of ordinary care as a condition to the right of recovery,
and wht-a it is read in connection \\ith such instruction it could
not have nii>lcd tlie jury. This view is sustained by the fol-
April, 1904.] Beidlek v. Kixg. 253
lowing decisions of this court: Willard v. Swansen, 12G Til.
381, 18 N. E. 548; Chicago etc. E. E. Co. v. Warner, 123 Til.
38, 14 N. E. 206; Village of Mansfield v. Moore, 124 Til. 133,
16 N. E. 246; Calumet Iron etc. Co. v. Martin, 115 Til. 358, 3
N". E. 456; Chicago etc. E. E. Co. v. Johnson, 103 Til. 512;
Chicago etc. E. E. Co. v. Johnson, 116 111. 20G, 4 X. E. 381."
No instruction advised the jury that the plaintiff could re-
cover if she was guilty of negligence herself. It is th.ercfore not
a case where the instructions are inconsistent with each other,
so that the jury could not tell which instruction to follow, but
it is a case where an element lacking in one instruction is sup-
plied by another, and the exception is therefore not vrell taken.
Instructions numbered 6 and 7, asked by the defendants,
were refused. Each would have advised the jury that if the
plaintiff had knowledge of the dangerous and unsafe condition
of the wall, and coiild at a moderate expense have prevented
its fall, it was her duty to have incurred this expense. WHiat
we have already said in discussing instruction ISTo. 13 given on
the part of the plaintiff disposes of the errors assigned upon the
refusal of these instructions 6 and 7.
The judgment of the appellate court will be affirmed.
The Subject of Party-walls is discussed at length in the monographic
note to Dunscomb v. Eandolph, 89 Am. St. Eep. 924-945.
If the Ovmer of a Building Leaves the Walls standing in a dangerous
•condition after a fire, he is liable, after the expiration of a reason-
able time, for failing to take measures to prevent the walls from
falling: Ainsworth v. Lakin, 180 Mass. 397, 91 Am. St. Eep. 314,
62 N. E. 746, 57 L. E. A. 132; Lauer v. Palms, 129 Mich. 671, 89
N. W. 694, 58 L. E. A. 67; Sessengut v. Posey, 67 Ind. 408, 33 Am.
Eep. 98; Citv of Anderson v. East, 117 Ind. 126, 10 Am. St. Eep.
35, 19 N. E.' 726.
CASES
m THB
SUPREME COURT
09
IOWA.
STATE V. CHICAGO. MILWAUKEE AND ST. PAUL
EAILWAY COMPAJ^Y.
[122 Iowa, 22, 96 N, W. 904.]
RAILWAY, Lialjility of to Passenger for not Stopping at
Crossings. — Tf an engineer is not liable to a passenger for not stop-
ping at a crossing, as required by the code of Iowa, the corporation
in whose en^plov he is cannot be held liable, (p. 256.)
STATUTES, PENAL, Construction of. — If a statute is penal in
chnrantor, it oiiirlit not to be construed as fixing a liability where
there is no fault. Hence, though a statute declares that all trains
upon any railway which intersects or crosses any other railway on
tho same level shall be brought to a full stop at a distance of not
le!^-'< than two hundred and not more than eight hundred feet from the
point of intersection, and that any engineer violating the provisions
of tlie sof-tion shall be fined one hundred dollars, and the corporation
on whose rnad tho offense is committed two hTindred dollars for
each ofTonse. n-^ither can be held liable where the failure to stop was
due to the brakes not Avn-king in the usual manner, (p. 256.)
PENAL ACTIONS— Burden of Proof.— In a penal action to
•"f^over a penalty for not stopping at a crossing, as required by the
statute, the burden of proof is on tho prosecution to show that the
failure to sn st'ip was due to the fault of the defendant, (p. 256.)
PENAL ACTIONS — Reasonable Doubt, — In a penal action the
statp iiMist assume tlie burden of proof, but need not show that the
nfl'cnso lias been committed beyond a reasonable doiibt. Such cases
arc crm trolled bv tho rule of evidence governing civil actions, (pp.
CONSTITUTIONAL LAW— Punishing Railway for Act of En-
gineer.— A statute imposing a penalty on a railway corporation for
the failure of its engineer to stop at a crossing is not unconstitu-
tional. It merely exacts of the corporation the duty of seeing that
its employe acts in obedience to the statute, (p. 25S.)
Aetif)ii to recover of t]ie defendant corporation a penalty for
not stoppiiio; a train at a railway crossing as required by sec-
(•/54)
Oct. 1903,] State v. Chicago etc. Eailway Co. 255
tion 2073 of the Code, a copy of which is set out in the opinion
of the court. Verdict and judgment for the state, and the
defendant appealed.
J. C. Cook, E. H. Addison and H. Loomis, for the appellant.
G. A. Underwood, for the state.
^ LADD, J. The defendant admitted the failure of its
train to stop within eight hundred feet and more than two
hundred feet from the crossing, and interposed the defense that
the engineer in charge did all he could to stop it, but that, ow-
ing to the brakes not working in the usual manner, the momen-
tum of the train carried it over the crossing. The court sub-
mitted the case to the jury on the theory that the burden of
proof was on the defendant, in order to exonerate itself from
liability, to show by a preponderance of evidence that the fail-
ure to stop was not due to any negligence on the part of its
employes in operating the train, or of the company in not hav-
ing proper appliances, or in keeping those had in proper condi-
tion, and that the company might be liable even though the
engineer was not. Possibly that should have been the law, but
it was not so written by the legislature. The statute in ques-
tion reads : "All trains run upon any railroad ^"* in this state
which intersects or crosses any other railroad on the same level
shall be brought to a full stop at a distance of not less than
two hundred and not more than eight hundred feet from the
point of intersection or crossing, before such intersection or
crossing is passed, except as otherwise provided in this chapter.
Any engineer violating the provisions of this section shall for-
feit one hundred dollars for each offense, to be recovered in an
action in the name of the state for the benefit of the school
fund, and the corporation on whose road the offense is com-
mitted shall forfeit the sum of two hundred dollars for each
offense to be recovered in like manner'^ ; Code, sec. 2073. The
latter part of the statute is purely penal in character, with the
evident object of punishing the offender, rather than afford a
remedy for the wrongful act. In this respect it differs radically
from provisions awarding damages flowing from certain acts,
such as the setting out of fire. Its meaning, then, cannot be
extended beyond the terms employed. But one offense is de-
nounced by it, and that is the omission of the engineer to stop
the train as required. The first sentence commands what shall
be done — defines a duty; the first clause of the second sentence
25G American State Eepokts, Vol. 101. [Iowa,
imposes a penalty on any engineer for '"'each offense" of omit-
ting such duty; the second clause of the second sentence adds
a penalty against the corporation "on whose road such offense
is committed." To vv-hat do these last words refer? Manifestly,
to the offense of which the engineer is guilty. No other is
mentioned in the section. The statute cannot be fairly read
otherwise. The thought seems to have been that, as the en-
gineer controls the train, the fault in failing to stop as required
is primarily his, and secondarily that of the company for which
he acts. There is no ground for holding that the company may
be liable independent of any fault of the engineer. The forfeit-
ure of the corporation is made to depend upon his guilt of the
offense defined, and upon that only.
^** 2. As the statute is purely penal in character, it ought
not to be construed as fixing an absolute liability. A failure
to stop may sometimes occur, notwithstanding the utmost eff'orts
of the engineer. In such even this omission cannot be regarded
as unlawful. The law never designs the infliction of punish-
ment where there is no wrong. The necessity of intent of pur-
pose is always to be implied in such statutes. An actual and
conscious infraction of duty is contemplated. The maxim,
"Actus non facit rcum nisi meus sit rea," obtains in all penal
statutes unless excluded by their language. See Ecgina v. Tol-
son, 23 Q. B. Div. 168, where it was said: "Crime is not com-
mitted where the mind of the person committing the act is
innocent." See, also, Sutherland on Statutory Construction,
sec. 354 et seq. No doubt many statutes impose a penalty re-
gardless of the intention of those who violate them, but these
ordinarily relate to matters which may be known definitely in
advance. In such cases commission of the offense is due to
neglect or ina<lvertence. But even then it can hardly be sup-
po>ed tlie oH'endcr would be held if the act were committed
when in a state of somnambulism or insanity. As it is to be
assuniod in the exercise of the proper care that the engineer
lias control of his train at all times, proof of the mere failure to
stop makes out a j^rima facie case. But this was open to ex-
planation, ami if, from that given, it was made to appear that
he made jiropor preparation, and intended to stop, and put
forth every roasonal)Ie effort to do so, he should be exonerated :
See Furlov y. Chicago etc. Ev. Co., 90 Iowa, 14G, 57 N. W.
71 0. 23 L. I!. A. 73.
This, howovor, did not shift the burden of proof. It was
still on the state to show that the offense had been committed
Oct. 1903.] State v. Chicago etc. Eailway Co. 257
(see Chaffee v. United States, 18 \Yall. 517, 21 L. ed. 908) ;
not, however, by proof beyond a reasonable doubt, as contended
by appellant. Suit for a penalty is by ordinary proceedings,
and the general ^** rules prevailing in civil actions should gov-
ern. Ordinarily, a party to succeed must establish the aver-
ments of his petition by a preponderance of evidence only.
There are exceptions in equitable actions, in which clear and
satisfactory evidence is required for the reformation of an in-
strument and the like, but we now recall no instance of an ac-
tion to be prosecuted by ordinary proceeding in which more
than a bare preponderance of the evidence is exacted : McAn-
nulty V. Seick, 59 Iowa, 586, 13 N. W. 743 ; Coit v. Churchill,
61 Iowa, 296, 16 N. W. 147; Truman v. Bishop, 83 Iowa, 697,
50 N. W. 278; Callan v. Hanson, 86 Iowa, 420, 53 N. W. 282;
Jamison v. Jamison, 113 Iowa, 720, 84 N. W. 705. Even
though a criminal act be the basis of recovery, the same rule
obtains: Welch v. Jugenheimer, 56 Iowa, 11, 41 Am. Ecp. 77,
8 X. W. 673; Riley v. Norton, 65 Iowa, 306, 21 X. W. 649.
An action for a penalty or forfeiture should fonn no ex-
ception to the rule. A civil liability only is involved, and
none of the reasons for exacting full proof, save the imputation
of wrongdoing as in a criminal action, obtain : People v. Briggs.
114 X. Y. 56, 20 K E. 820; Hitchcock v. Munger, 15 X.' H.
97; State v. Kansas City etc. Ey. Co., 70 Mo. App. 634; Haw-
loetz V. Ivass (C. C), 25 Fed. 765; 16 Ency. of PL & Pr. 295.
As said in the first of the above cases: "The purpose of the
action is not the punishment of the defendant in the sense
legitimately applicable to the term, but such action is brought
to recover the penaltv as a fixed sum by wav of indemnity to
the public for the injury suffered by reason of the violation of
the statute. The effect is merely to charge tlie defendant witli
pecuniary liability, while a criminal prosecution is had for tli'^
purpose of punishment of the accused." Chaffee v. United
States. 18 Wall. 516, 21 L. ed. 908, is sometimes cited to th-
contrary, and seems to have been relied on in reaching the
conclusion tliat the intensity of proof should be beyond a rea-
sonable doubt in Gulf etc. Ey. Co. v. Dwyer, 84 Tex. 195. 19
S. W. 470; but, as pointed out in Hawloetz v. Ka^s. 25 Fed.
765, that question does not ^'^ appear to have been considered.
See. also, Eiker v. Hooper. 35 Yt. 457. 82 Am. Dec. 646. Tlio
weigh.t of authority is with our conclusion that tlie ricrht to
recover may be established by a preponderance of the evi-
dence.
Am. St. Rep. Vol. 101—17
258 American State Eeports, Vol. 101. [Iowa,
Appellant questions the constitutionality of the statute in so
far as it imposes a penalty upon the corporation for an offense
of the engineer. As we understand the argument, it is that
the legislature has no power to enact a statute punishing one
person for an offense committed by another. Such is not the
purport of this statute, however. The engineer is a mere em-
ploye or agent of the corporation. He is selected by it for
this position of great responsibility in the operation of its prop-
erty, and is under its directions. The statute exacts of the
corporation the duty of seeing to it that such employe or agent
do this in obedience to the statute, and on failure to do so in-
flicts a penalty, not alone for the omission of the engineer, but
for its failure to compel the proper discharge of his duty.
Other errors assigned will not be likely to arise on another trial.
Eeversed.
Whether or not a Criminal Intent or guilty knowledge is a necessary
element of a statutory offense is a matter of construction, to be
determined from the language of the statute in view of its manifest
purpose and. design: Commonwealth v. Weiss, 139 Pa. St. 247, 23
Am. St. Eep. 182, 21 Atl. 10, 11 L. R. A, 530. See, too, People v.
Curtis, 129 Mich. 1, 87 N. W. 1040, 95 Am. St. Rep. 404, and cases
cited in the cross-reference note thereto; Russell v. State, 66 Ark.
185, 74 Am. St. Rep. 78, 49 S. W. 821; Haggerty v. St. Louis Ice
etc. Co., 143 Mo. 238, 65 Am. St. Rep. 647, 44 S. W. 1114, 40 L. R.
A. 151. Ordinarily, the intent to violate a statute is present when
a person commits an act prohibited bv statute: State v. Ilildebrand,
62 Nob. 136, 89 Am. St. Rep. 743, 87' X. W. 25.
Iti Actions to Recover a Penalty the defendant's guilt need be cs-
talilisiicd only by a clear preponderance of the evidence, for the
suit is in the nature of a civil proceeding: Town of Havana v. Biggs,
5S 111. 483; Robcrgo v. Burnham, 124 Mass. 277; Hitchcock v. Munger,
15 X. IT. 97; People v. Briggs, 47 Hun, 266, affirmed in 114 N.' Y.
56. 20 N. E. 820; Campbell v. Burns, 94 Me. 127, 46 Atl. 812; Louis-
ville etc. R. R. Co. V. Hill, 115 Ala. 334, 22 South. 163. Compare Louis-
ville etc. R. R. Co. V. Commonwealth, 23 Ky. Law Rep. 1900, 66 S.
W. 505. > ^ i .
Jan. 1904.] Beebe v. Magoun. 259
BEEBE V. MAGOUK
[122 Iowa, 94, 97 N. W. 986.]
CONSTITUTIONAL LAW — Taxation — Notice to Property
Owner, When Req.uired. — Whenever the amount of the taxes to be
exacted depends on the judgment or discretion of those fixing the
value of the property or the benefits by which such amount is to be
measured, an opportunity must be given the property owner to be
heard. Hence, if an assessment is authorized for the construction of
drainage ditches to be equitably divided among the property owners
along or in the vicinity of the improvement and those benefited
thereby, and no provision is made for notice to the persons assessed
and an opportunity to be heard against the assessment, the statute
is unconstitutional as taking property, without due process of law.
(p. 262.)
Suit to enjoin the collection of an assessment to raise funds
to pay for a drainage ditch. The petition was dismissed, and
the plaintiff appealed.
J. S. Lothrop, for the appellants.
Shaw, Sims & Kuehnle and P. A. Sawyer, for the appellees.
*** LADD, J. By proceedings somewhat irregular, but in
substantial conformity with sections 1939 to 1951, inclusive, of
the Code, a ditch was located, "commencing at or near a clump
of trees growing near the center of S. E. ^ of section 15, Tp. 86^
E. 45 west, in Woodbury county, and running thence in a
southeast direction to the south line of Woodbury county, at
or near the center of the south line of section 35 in said town-
ship and range." From there on it extended into ]\Ionona
county. Appropriate orders were made by the board of super-
visors, the contracts for the excavation let, and, as we under-
stand, much of the work had been done before this suit was
begun. "All the land benefited by the location and construction
of the improvement" was divided into tlio classes "dry," "low,"
^^ "wet," and "swamp"; and the appraisers reported that they
had made "an equitable apportionment of the cost, expenses,
cost of construction, fees, and damages assessed for the construc-
tion of any such improvement .... among the owners of the
land along or in the vicinity of such improvement, and to bo
benefited thereby, in proportion to the benefit to each of thorn."
Such proportional amount was duly levied by the board of su-
pervisors against the respective tracts of land thought to have
been benefited: Code, sec. 1946. The ditch did not run through
260 Americax State I^EroRxs, Vol. 101. [Iowa,
tlio land of the plaintifTs. nor did tlicir lands abut thereon.
Their lands were at considerable distance from the ditch, though
prol)ably not wholly without benefit from its construction.
These owners never received notice of any of the proceedings,
and were not apprised of the levy of the ap])ortionate share of
the necessary outlay until long after the time fixed for taking
an appeal from the assessinent to the district court, provided
for by section 1917, had expired. Nor do the statutes require
any notice, save "on the owner of each tract of land tlirough or
abutting upon which" the proposed improvement is to be made.
The primary purpose of this notice is to enable them to make
claim for damages which may be occasioned by the construction
of the ditch. Whether it will also serve as notice that the cost,
etc., will be apportioned, and in part levied against their lands,
is not now for determination.
Tlie extent of appellant's contention is that in so far as the
statutes authorize the assessment and levy of taxes against lands
through which the ditch does not run, and which do not abut
upon it, they are in conflict with the provision of the state con-
stitution prohil)iting deprivation of property without due pro-
cess of law. By "due process of law," in a case like this, is
nu'ant "notice and an opportunity of being heard," and the
necessity therefor, as prerequisite to the taking of private prop-
erty by taxation, is uniformly recognized. The subject re-
ceived thoughtful ^^ consideration in Gatch v. City of Des
:\Ioines, 03 Iowa, 718, 18 N. W. 310, and the conclusion was
reaclu'd that ''the arbitrary appropriation of private property
without notice and without an opportunity for hearing cannot
l)e defcniled upon anv natural principle of justice, and ouglit
not to 1)0 tolerated and upheld by the courts." and that "in
the ordinary methods of assessment and valuation of property
f'tr taxation, whether for general or special purposes, the au-
thorities are very nearly uniform to the elfect that it is neees-
sary to tlie validity of the assessment that tlie pro{)erty owner
shnuhl liave nutiee and an opportunity to be heard." In that
ei'.^i- >tututrs autlioriziug tlie assessment of the cost of street im-
])i'o\ciiii-iits against ahuttiiig lots witliout notice to the owners,
and witliout alioi'diug an opportunity of being heard, v/ere de-
chirrd to !)e inimical to the provisions of the constitution. The
fjUt-tion \va- again considered at leugtli in I'errv v. Canijvi)*-!!.
J 10 lou-a, -i".!!), ,^1 X. W. (m)1, :,o L. n. A. ir-J, where statutes
imposing an inhci-itance tax were deelai-ed subject to the same
infirmity. Exceptions tliere nuiy be as m the case of a poll tax,
Jan. 1904.] Beebe v. Magoun. 2G1
a license tax, and the like, where the amount to be exacted is
definitely fixed, and a hearing would be of no avail. The
amount of the tax is not open to contest in such cases, though
the liability for such amount may be, and can be, raised subse-
quently by disputing its collection, or in an action to recover
it when obtained by duress. McMillan v. Anderson, 95 U. S.
37, 2-i L. ed. 335, cited by appellee, was such a case. See, also,
Hodge V. Muscatine Co., 121 Iowa, 482, 96 X. W. 9G8. So
where the amount is merely the result of a mathematical cal-
culation the same rule obtains : Amery v. City of Keokuk, 72
Iowa, 701, 30 N. W. 780. But whenever the amount of tax
to be exacted depends upon the exercise of the judgment and
discretion of those fixing the value of the property or benefits
by which such amount is to be measured, an opportunity for
correction must be afforded: Trustees of Griswold College v.
City of Davenport, Go Iowa, 633, 22 N. W. 904. "It '•*'' is not
enough,'^ as was said by the court of appeals in Stuart v.
Palmer, 74 N. Y. 183, 30 Am. Rep. 289, "that the owners
chance to have notice, or that they may, as a matter of favor,
b.ave a hearing. The law must reqiiire notice to them, and
gi^•e them the right to a hearing, and the opportunity of being
lioard."
Tlie presumption ordinarily prevails that a hearing would be
advantageous, and whenever there is doubt the burden is upon
the party upholding the tax to show the contrary : Auer v. City
of Dubuque, 65 Iowa, 65, 22 X. W. 914. The facts of this
case bring it clearly within the rule exacting an opportunity
of being hoard. In apportioning the outlay for the ditch, tlie
appraisers must exercise judgment and discretion in dividing
the lands drained into the four classes, according to benefits.
and in determining to which class each tract belongs. If all
land in each class is to bear the same relative burden, then the
proportion to be borne by that in each of the difierent classes
is to be determined in the same way. So, too, if the law be so
construed that the benefits to each tract are to be separately
estimated and assessed. The levy made by the board of super-
visors then depends not only upon the estimation of benefits to
Ije received by a particular tract, but upon the comparison of
the relative benefits to the different tracts or classes of land
drained. Indeed, it would be difficult to imagine a case in
which the judgment and discretion in fixing values as the basis
of the tax levy enter more largely. Such assessments are uni-
versally recognized as being peculiarly subject to infirmities, and
262 American State Reports, Vol. 101. [Iowa,
provision for their review and correction through notice and
an opportunity for hearing at some time by some tribunal de-
clared by the authorities generally as essential to their validity.
Section 1947 of the Code points out the mode of hearing, but,
as said, there is no provision whatever for the service of notice
upon others than the owners of the land through *^*^ which
the ditch runs, or abutting upon it. The contention of appellee
that this court has ever declared notice not essential in such a
case is without foundation. In Yoemans v. Eiddle, 84 Iowa,
147, 50 N. W. 886, the ditch had been established under stat-
utes prescribing notice, and the court held that reopening or
repairing the same might be done, and the costs assessed, with-
out other notice than the previous construction of the ditch and
the law afforded. This, as we understand the opinion, was
upon the theory that the reopening and repairing were contem-
plated in the original construction, and the authority exercised
was then conferred upon the board. As summarized by the
court: "It is very plain that the jurisdiction acquired by the
original petition, notice, and other proceedings continues, and
that the duty of exercising that jurisdiction is imposed upon
the board of supervisors." In this view, the notice was con-
tinuing, and the owners of the land within the district created
by the location of the ditch and tlie levy of taxes bound to avail
themselves of the statutory remedies without other information,
the same as in the case of the general taxation. ^Manifestly it
was not intended to hold that notice may be entirely dispensed
with in tlie levy of special assessments against property, in
Oliver v. Monona County, 117 Iowa, 43, 90 X. W. 510, the pro-
ceedings were under the statute providing for the establishment
of a drainage district, and the court held that notice and an
opportunity to be lieard upon tlie question whether his land
was properly included within the district were all the land
owner can justly demand. The statute, in so far as it author-
izes tlie estimation of benefits to lands not abutting on a ditch,
and througli wliich it is not to be excavated, and the levy of
taxes accordingly for such improvement without notice to the
owner, is a clear and palj)able invasion of the fundamental law
forbidding the taking of private property without due process
of law.
Eevorsed.
Aft to thr ronf^fJfutionalifn of <lrain.i<je anrl irripcntion statutes, soe
Pioneer Irr. Dist. v. Bradley, 8 Idaho, 310, 68 Pac. 295, ante, p. 201,
Jan. 1904.] Murray v. Wilcox. 263
and cases cited in the cross-reference note thereto. Proceedings for
street improvements require notice and opportunity to be heard where
the cost of the improvement is be apportioned among those benefited:
Garvin v. Daussman, 114 Ind. 429, 5 Am. St. Eep. 637, 16 N. E. 826;
Stuart V. Palmer, 74 N. Y. 183, 30 Am. Eep. 289.
MUERAY V. WILCOX.
[122 Iowa, 188, 97 N. W. 1087.]
PROCESS. — The Immunity from Service of Civil Process on
a witness while attending the trial in another state to give evidence
seems to be universally recognized, (p. 263.)
PROCESS — Exemption of Party to Action from Service of
While Attending Court. — A nonresident defendant in a criminal prose-
cution attending the courts of the state for the purpose of his trial
is exempt from the service of civil process while coming and depart-
ing, as well as while actually in attendance at court, (p. 267.)
Action for breach of promise of marriage. After the service
of process on the defendant, he moved to set aside such service
on the ground that when it was made he was a nonresident
and was in attendance on one of its courts on the trial of an
indictment against him for a felony. The affidavit filed in
support of the motion showed that the defendant came to the
state from Xebraska on October 23, 1901, at wbich time he
was put on trial under one indictment, and another pending
against him was dismissed; that he intended to return to his
home by the first train after these proceedings, but before he
could do so process in this action was served on him. The mo-
tion was overruled, and at a subsequent term judgment by
default was entered against him, from which he appealed.
No appearance for the appellee.
Tom H. Milner, for tlie appellant.
^®® LADD, J. The immunity from service of civil process
of a witness while attending a trial in a state other than that
of his residence to give evidence seems to be imiversally recog-
nized. The privilege protects him in coming, in staying, and
in returning, if he acts in good faith, and witliout unreason-
able delay: Sherman v. Gundlauch, 37 :\[inn. IIS. 33 X. W.
549; Mitchell v. Wixon, 53 Mich. 541, 19 X. W. 176; Tbomp-
son's Case, 122 Mass. 428, 23 Am. St. Eep. 370 : Person v. Grier,
66 N. Y. 124, 23 Am. Eep. 35. See note to Mullen v. Sanborn,
2Gi American State Eeports, Vol. 101. [Iowa,
79 Md. 364, 47 Am. St. Eep. 421, 29 Atl. 522, 25 L. E. A. 721.
As to whether a party is entitled to a like exemption there ia
some conflict in the authorities. In Bishop v. Yosc, 27 Conn.
1, the defi'ndant, a resident of another state, had come to Con-
necticut to attend the trial of a ca^e which he had caused to
l>e hroufjht, and he was held not exempt from the service of
summons; hut in Wilson Sewing Machine Co. v. Wilson (C. C),
22 Fed. 803, and ^^^ ^yilson Sewing Machine Co. v. Wilson,
51 Conn. 595, it was decided otherwise as to a nonresident de-
fendant whose attendance was necessary both as a witness and
to instruct his counsel, the reason for the distinction being tluit
a plaintiff having sought the aid of the courts of another state
ouglit not to shrink from being subjected to their control, while
the attendance of the defendant may be said to be compulsory.
In Baldwin v. Emerson, 16 B. I. 304, 27 Am. St. Bep. 741,
15 Atl. 83, however, this distinction was disregarded, and the
reason for exempting either a plaintiff or a defendant in a
civil action, IxK^ause of being a nonresident, from service of
summons, was declared "fanciful, rather than substantial" :
See. also, Ellis v. De Garmo, 17 B. T. 715, 24 Atl. 579, 19 L. B.
A. 5G1. But a different view has been taken by the great weight
of authority, declaring both party and witness alike entitled
to the privilege: First Xat. Bank v. Ames, 39 ]\rinn. 179, 39
X. W. 308; Shaver v. Lcthcrby, 73 Mich. 500, 41 X. W. 677;
F\>k V. Vrestover, 4 S. Dak. 233, 46 Am. St. Bep. 780. 55 X.
W. 961; In re ITealy, 53 Vt. 694, 38 Am. Bej). 713; Andrews
V. l.cml)Ock, 46 Ohio" St. 38, 15 Am. St. Bep. 547, 18 X. E. 483;
Mattliews V. Tuft,«, 87 X. Y. 568; Wilson v. Donaldson, 117
Ind. 356, 10 Am. St. Bep. 48, 20 X. E. 250, 3 L. E. A. 266;
Halsey v. Stewart, 4 X. J. L. 367.
As a party may testify in his own b.eh.alf in this state, there
is no room for the distinction made between parties and wit-
nesses, save pr>ssil.]y as suggested in the Connecticut cases. The
reasons for exemiition from service of process have been so
often stated tliat reiK'tition seems superfluous. They relate to
the free and nidiaiiipered administration of justice in our courts,
and are a,-< a])i)iical;le to service of summons or original notice
a.- the lieginning of an action by arrest on civil process under
the old common-law practice. Said Elliott, J., in Wilson v.
Donaldson. 217 Ind. 356, 10 Am. St. Bep. 48, 20 X. E. 250. 3
L. B. A. -'CAl, concerning the exemption: 'Tt is his privilege,
!•" iin^h-r our laws, to testify in his own behalf; and this
privilege should not be burdened with the hazard of defendin<y
Jan. 1904.] Murray v. Wilcox. 265
other actions in our forums. Our own citizens will often
derive a substantial benefit from the personal appearance of a
nonresident defendant, sin'ce it may enable them to obtain a
personal judgment which else were impossible. If citizens of
other states are allowed to come into our jurisdiction to attend
court as parties or witnesses, and to freely depart from it, the
administration of justice will be best promoted, since a defend-
ant's personal presence is often essential to enable his counsel
to justly conduct his defense. The principle of state comity,
too, demands that a citizen of another state, who submits to
the jurisdiction of our courts, and here wages his forensic con-
test, should not be compelled to do so under the limitation and
obligation of submitting to the jurisdiction of our courts in
every case that may be brought against him. While coming
and departing, as well as while actually in necessary attendance
at court, he should be free from the hazard of being compelled
to answer in other actions. It is an evidence of respect for
our laws and confidence in our courts that he comes liere to liti-
gate, and the laws he respects should give him protection. If
he can come only under the penalty of yielding to our jurisdic-
tion in ever}^ action that may bo Ijrought against him. he is
deprived of a substantial right, because he is willing to trust
our courts and laws without removing his case to the federal
courts, or refusing to put himself in a position where porsnnal
judgment may be rendered against him. High considerations
of public policy require that the law should encourage him to
freely enter our forums by granting immunity from process in
other civil actions, and not discourage him by 1)urdening liim
with the obligation to submit to tlie writs of our courts if he
comes within our borders." See, also, excerpts from numerous
decisions collected in note to 25 L. R. A. 721. Of course, there
may ^^^ be exceptions, as Mullan v. San1)orn, 79 Md. 3G1. 47
Am. St. Rep. 421, 29 Atl. 522, 25 L. R. A. 721, where a plain-
tiff in an attachment suit came from another state to testify,
and was held not to be privileged from the service of summons
while there in an action for maliciously bringing the attach-
ment suit. Having resorted to this dra.stic remedy, the equal
administration of justice seemed to demand recoupment of the
resulting damages in the same jurisdiction.
It is also to be noted that the decisions with reference to
immunity of witnes.ses of parties from service of process or sum-
mons within the same state, but in counties other than their
residence, are in conflict: See Christian v. A\'illiams, 111 Mo.
266 American State Repoets^ Vol. 101. [Iowa,
429, 20 S. W. 96. ThoTigh that question is not involved, it
may be observed that it is probiably settled by the statutes of
this state. Unless, then, the privilege is obviated by some pro-
vision of our code, the defendant was entitled to the immunity
claimed. Section 3541 provides that "the mode of appearance
may be: .... 1. By delivering to the plaintiff or the clerk
of the court a memorandum in writing to the effect that de-
fendant appears, signed either by the defendant in person or his
attorney, dated the day of its delivery, and to be filed in tlie
case; 2. By entering an appearance in the appearance docket
or judge's calendar, or by announcing to the court an appear-
ance which shall be entered of record; 3. By an appearance
even though especially made, by himself or attorney, for any
purpose connected with the cause, or for any purpose connected
with the service or insufficiency of the notice ; and an appearance,
special or other, to abject to the substance or service of the
notice, shall render any further notice unnecessary--, but may
entitle the defendant to a continuance, if it shall appear to the
court that he has not had the full timely notice required of the
sul)stantial cause of action stated in the petition." The object
liad in enacting this statute was to do away with allowing a
party to specially appear ^^^ for the sole purpose of advising
the court that he is not there : See Hodges v, Brett, 4 G-. Greene
(Towa), 345. It relates to the acquirement of jurisdiction
of the ]WTson, and not what shall be done with him after juris-
diction lias been obtained. No exception was taken by the de-
fendant to tlie manner of service or to the character of the no-
tice, and he admits having Ix^^n brought into court. Wliat he
objected to was being detained therein and compelled to plead
to plaintiff's p(>tition and litigate the issues in a jurisdiction
into which the plaintiff had no right to bring him. The
service is merely the method of invoking jurisdiction. The
imniimity extends further, and shields him from litigating the
controvorsv in the place where he was exempt from service. If
lie had failed to appear, this would have been a Avaiver of his
privilege, and a valid and binding judgment might have l>een
remlorrd against liini: Thornton v. American Writing ^Macliine
Co.. S3 Ga. 2SS, 20 Am. St. Hep. 320, 9 S. E. G79; Freeman on
.Tudginr'Ht?. see. 200; note to 25 L. R. A. 721. In enacting
the above statute, and in authorizing suit against a nonresi-
dent in any county of the state where found, tlie legislature
had no thoiiidit of interfering with a rule concerning exemption
from service of notice: Wilson v. Donaldson, 117 Ind. 356, 10
Jan. 1904.J Murray v. Wilcox. 367
Am. St. Eep. 48, 20 N. E. 250, 3 L. E. A. 266; Fisk v. Westover,
4 S. Dak. 39, 46 Am. St. Eep. 780, 55 N. W. 961. These stat-
utes, like others, were enacted with reference to the great body
of law as it existed, and should not be isolated therefrom wlien
being construed.
The suit contemplated is such as may be properly instituted,
and against which the defendant is not shielded by the privileges
of his situation. The circumstances were such as to bring the
case clearly within the rule announced. The defendant was
bound to be in attendance of court to avoid the forfeiture of his
bond. He came also as a witness in his own behalf. His stay
was not unreasonable, ^^'^ and he should have been allowed to
go hence from the jurisdiction of the court, which had been
illegally invoked against him. The remedy by motion of which
defendant availed himself was that generally recognized by the
authorities as appropriate. Indeed, it would seem that no other
would have been effective in relieving him from in some way
responding to the petition and in dismissing him from the
court's jurisdiction.
Eeversed.
A Nonresident Suitor, whether plaintiff or defendant, coming into
a state for the sole purpose of attending the trial of his case, such
attendance being shown to be necessary, is, according to the better
rule, privileged from the service of civil process. Some authorities,
however, take a contrary view: See the monographic note to Worth
v. Norton, 76 Am. St. Rep. 536-538; Guynn v. McDaneld, 4 Idaho,
605, 95 Am. St. Eep. 158, 43 Pac. 74; State v. Kennan, 33 Wash. 247,
99 Am. St. Eep. 949, 74 Pac. 381; Greenleaf v. People's Bank, 133
N. C. 292, 98 Am. St. Eep. 709, 45 S. E. 638.
268 American State Eeports, Vol. 101. [Iowa,
COWAX V. WESTERN UNION TELEGRAPH COMPANY.
[122 Iowa, 379, 98 N. Wj- 281.]
TELEGEAPH CORPORATIONS.— Damages are Recoverable
for Mental Anguish and Suffering resulting from the failure of a
telegraph corporation to properly transmit a message, (p. 270.)
DAMAGES— Mental Suffering.— In an Action Sounding in Tort
the rule allowing recovery for mental suffering is much more liberal
than in actions on contract, (p. 272.)
DAMAGES, When not Limited to the Damages Arising from
the Breach of a Contract. — Though the failure of a telegraph cor-
poration to correctly transmit a message is a breach of a contract,
the damages to which it is liable are not limited to the plaintiff's
damages for such breach. The negligence in the performance of the
obligation by which injury resulted to him is a tort, damages for
which are not restricted by the rules applicable to ordinary actions
for breach of contract, (p. 273.)
ACTIONS, When may be Treated as Ex Delicto Though Eased
on Contracts. — An allegation by the plaintiff of contraetunl rela-
tions with him in an action against a telegraph corporation for the
fnilure to correctly transmit a message does not necessarily make the
action one ujion contract. These matters may properly be pleaded
l)y way of inducement preliminary to the allegation of facts constitut-
ing a tort, and the action may, therefore, be treated as ex delicto
rather than ex contractu, (p. 273.)
DAMAGES, Consequential in Actions of Tort. — One who com-
mits a trespass or other wrongful act is liable for all the direct in-
jiirios resulting from such act. although such injury could not have
beon contemplated as a probable result of the act done. Hence, in
this class of actions, recovery may be had for mental suffering, (p.
274.)
DAMAGES — Mental Suffering. — The impossibility of providing
niiy exnct standard or measure of compensation for injured feelings
does not constit\ite a snfTieient reason for refusing to award damages
for mental an^uisli resulting from the incorrect transmission of a tele-
gram, (p. 27.^.)
PLEADING, Contributory Negligence, Failure to Negative. —
A coiiiplnint ng'siii'^t a telograpli corporation to recover dainaees for
its neixligontly f;iiiino- to transmit a message correctly, need not allege
thr> absi^Tico of contributory negligence on the part of the plaintiff,
wli'^ro thi' stiif.ite provides thnt such a corporation is lialdc for all
'nist:il\i's r.r dolnys in transmitt ingr or receiving messages over its
linos, and that in actions to recover damages thus caused, the burden
is on tlio corporation to prove that the mistake or delay was not
due to its negligeuce. (p. 275.)
Action to rocover clan^.niies for tlic ineorrcct transmis?ion of
a tcloL^ram clainicd to ho due to the nofjliL'-enfo of the defenrlant
COT]. oration. A'crdict and judgment for the plaintiff, and the
defendant appealed.
Jan. 1904.] Cowan v. Western Union Tel. Co. 2G0
George H. Fearans, Carr, Hewitt, Parker & Wright and
Carskadden & Burk, for the appellant.
Courts & Tomlinson and W. E. Blake, for the appellee.
380 WEAVEE, J. The evidence tends to establish the fol-
lowing state of facts: James Henry Cowan died in Louisa
county, Iowa, on or about January 12, 1901. Iramecliatoly
upon his death, his widow, the plaintiff herein, prepared to take
his body to the home of his parents and other family relatives,
near Seaton, Illinois, for burial. To apprise these friends of
the decease of her husband, and to insure their meeting her at
the station upon her arrival with the body and accompanying
her to the family home, some miles in the country, she sent a
message by the defendant to one Robert Swearinger, who was
an acquaintance of the family, and the manager of a telephone
exchange at Seaton, as follows: "Harry dead. Arrive with
corpse at 6 A. M. Tell Thomas. [Signed] Edith Cowan."
The message was received by Swearinger in the evening, in time
to have notified the parties; and he would have siven the no-
tice, and plaintiff would have been met at the station and cared
for as expected by her but for the mistake or negligence of the
telegraph company. As delivered by the telegraph com-
pany, the message was signed, "Edith Erwin," and Swear-
inger, not knowing and being unable to learn of any per-
son of tliat name, and not knowing for whom the message
was in fact intended, did nothing witli it. The relatives of the
deceased, having received no notice of his death or of the coming
of the widow, did not meet her at the station. Arriving there,
and finding none of the friends in waiting, and no preparation
made for the conveyance of herself and the body of lier luis];and
to their destination in the country, plaintifT was much dis-
tressed in mind, and, to some extent, broken down in bodily
strength. She was thereupon taken to a hotel ])y a l)rother,
who accompanied her, and placed upon a coueli. wlierc slie re-
mained throe or four hours, until her friends had l>een notified.
and arrived with conveyance for her accommodation. Tiii'so
allegations are not in serious dispute, and upon them plaintiff
seeks to recover damages. The jury returned a verdict in hov
favor for two hundred and seventy-five dollars, and from tlio
judgment entered thereon defendant appeals.
^^^ It will be observed that the basis of plaintiff's claim for
damages is mental anguish and suffering resulting to her from
the failure of defendant to j>roperly transmit the message to
270 American State Eeports, Vol. 101. [lowa^
Swoaringer. That such damages are recoverable in a proper
case was held by this court in Mentzer v. Western Union Tel.
Co., 93 Iowa, 752, 57 Am. St. Eep. 294, 62 N. W. 1, 2S L. R.
A. 72, and, unless we abandon that precedent, plaintiff's right
of action must be coniceded. Anticipating this suggestion, coun-
sel for appellant submit an able and elaborate argument in sup-
port of their contention that the Mentzer case should be over-
ruled. The decision of that case was reached only after much
deliberation and a careful review of the authorities. Most of
the cases now so exhaustively marshaled were then called to-
our attention, and their bearing and value duly considered.
We are still satisfied with the result there announced, and recog-
nize its authority as a precedent in the case before us. The
opinion accompanying that decision sets forth very fully the
principles upon which it is founded, and there is no occasion
for their restatement at this time.
We are reminded by counsel that Eeese v. Western Union
Tel. Co., 123 Ind. 294, 24 N. E. 1G3, 7 L. R. A. 583, cited by
us in support of our decision in the Mentzer case, has since been
overruled by the Indiana court. This appears to be the case,
but we must be permitted to say that, being satisfied with the
strength of the reasoning and soundness of the principles an-
nounced in tlie first case, we are not disposed to concur in their
recantation. Uniformity in judicial holdings throughout the
various jurisdictions of the nation is much to be desired, and,
where it prevails, no court should lightly disregard it, or intro-
duce confusion inte tlie precedents. But where, as upon the
questions raised by this appeal, there is an irreconcilaljle con-
flict in the decisions, and respectable courts are arrayed upon
either side of tlio controversy, we feel at liberty to adopt tlie
theory which seems to us most logical, reasonable and just,
■without special reference to the numerical preponderance of tlie
authorities. As suggested in the Mentzer case: "One of the
crowning glories of the ^'^^ common law has been its elasticity
and ada]itability to new conditions and new states of fact
Slmnld it ever fail to be adjustable to the new conditions which
agf and oxiierience bring, then its usefulness is over, and a
new social comjiact must be entered into." It is nevertheless
true that every denionstration of tliis elastic quality of the
common law, and every readjustment made necessary by chang-
ing conditions, has been accomplished over the insistent protest
and opjKisition of those who have professed to find in it a subtle
and dangerous attack upon fundamental principles. The recog-
Jan. 1904.] Cowan v. Western Union Tel. Co. 271
nition of the right of a party under certain circumstances to
recover substantial damages for physical and mental suffering
has been no exception to this rule, and even yet it is the subject
of much controversy. Eecovery of such damages was at first
sought to be confined to cases of nental suffering arising from
ph}"sical injury wrongfully or negligently inflicted. So strictly
and literally has this rule been applied, that in some jurisdic-
tions it has l>een held that a wrongful act producing nervous
shock or fright, which results in physical prostration, insanity,
and death, affords no cause of action against the wrongdoer:
Mitchell V. Eochester etc. E. E. Co., 151 N. Y. 107, 56 Am. St.
Eep. 604, 45 K. E. 354, 34 L. E. A. 781; Haile v. Toxa^ etc.
Ey. Co., 60 Fed. 557, 9 C. C. A. 134, 23 L. E. A. 774; Ewing
V. Pittsburgh etc. Ey. Co., 147 Pa. St. 40, 30 Am. St. Eep. 709,
23 Atl. 340, 14 L. E. A. 666. The doctrine thus approved is
so manifestly unjust, and so out of harmony with the general
spirit of the law, that many courts have wholly repudiated it,
while still others have limited and modified it by important
exceptions. In direct opposition to the cases above cited as to
damages arising from fright or nervous shock in the absence of
immediate physical injur}', we may note Gulf etc. Ey. Co. v.
Hayter, 93 Tex. 239, 77 Am. St. Eep. 856, 54 S. \y[ 914, 47
L. E. A. 325; Pureell v. St. Paul etc. Ey. Co., 48 :\[inn. 134,
50 N. W. 1034, 16 L. E. A. 203; Hill v. Kimball, 76 Tex. 210,
13 S. W. 59, 7 L. E. A. 618; Oliver v. La Valle, 3G Wis. 596;
Stutz V. Chicago etc. Ey. Co., 73 Wis. 147, 9 Am. ^« St. Eep.
769, 40 N. W. 653; Watkins v. Kaolin Co., 131 N. C. 536, 42
S. E. 983, 60 L. E. A. 617; Watson v. Dilts, 116 Iowa, 249, 93
Am. St. Eep. 239, 89 K. W. 1068, 57 L. E. A. 559.
Eecovery has also been permitted for the mental suffering of
a husband on account of the illness of his wife, occasioned l)y
the negligent act of a railroad company in causing them to
alight from the train at an unreasonable distance from the
proper station (Brown v. Chicago etc. Ey. Co., 54 Wis. 34 2, 41
Am. Eep. 41, 11 N. W. 356, 911) ; also for mental sniTering
occasioned by the malicious prosecution of a civil action (Cohn
V. Saidel, 71 N. H. 558, 53 Atl. 800) ; for mental and Ixjdily
suffering sustained by a sick person while awaiting the arrival
of a physician, whose coming had been delayed by failure of a
telegraph company to deliver a message sent him (\A'esi!'rn
Union Tel. Co. v. Church, 3 Keb. (Unofficial) 22, 90 X. W.
878, 57 L. E. A. 905) ; for nervous shock and menial distress of
a woman who was wrongfully required to leave the train xinon
273 Ajiekican State Eeports, Vol. 101. [Iowa,
which she was a passenger, though no physical force or violence
was used in excluding her (Sloane v. Soutliern Cal. Ey. Co.,
Ill CaL GG8,.4-1: Pac. 320, 32 L. K. A. 193); for humiliation
hy wrongful arrest in the presence of family and friends (Flam
V. L<^e, IIG Iowa, 289, 93 Am. St. Eep. 243, 90 X. W. 47;
Shatto V. Crocker, 87 CaL 629, 35 Pac. 931); and for injury
to feelings of one whose property has been wrongfully attached
(City Bank v. Jeffries, 73 Ala. 183). Under a California
st-atute, permitting the father to maintain an action for the
death of a minor child, and providing that such damages may
be given as, under all the circumstances, may be just, it is held
that t1ie parent's mental anguish may be considered by the jury
in finding its verdict. Practically parallel in point of fact
with this case is Western Union Tel. Co. v. Giifen, 27 Tex. Civ.
App. 306, 65 S. W. 661, and a recovery of substantial damages
is there sustained. For further reaffirmation of the same prin-
ciple, see Bennett v. Western Union Tel. Co., 128 jST. C. 103,
38 S. E. 249 ; Western Union Tel. Co. v. A^an Cleave, 107 Ky.
46 k 92 Am. St. Eep. 366, 33 Ky. Law Eep. 53, 54 S. W. 827;
Western Union Tel. Co. v. Fisher, 107 Ky. 413, 21 Ky. Law Eep.
1293. 54 S. W. 830; Western Union Tel. Co. v. Crocker, 135
»^^ Ala. 497, 33 South. 45, 59 L. E. A. 398. Some of the fore-
going cases go much further than is necessary for us to go in
dis])nsing of this appeal, and we cite them not as adopting all
their conclusions, but as indicating that the rule asserted by the
apjtellant is not to be considered as of universal application.
In tlic c;i>e now sought to be overruled we call attention to
the Tiro])osition (often overlooked in discussing this much-vexed
quc-tinii) tliat in an action sounding in tort, the rule allowing
rwovery for mental sufl'ering is much more liberal tban in ac-
tif)!!s f)n c'liiiract. ]\lany of the decisions which deny the sound-
}icss of ill!' rule adopted in the Mentzer case expressly plant
tlicir (Iniling uiion tlie principle that mental suffering cannot
be [)ri .-iiincd to have l;eon within the contem])lation of the parties
to the contract as a nec(\ssarv or natural result of its breach.
For in-taiice, the supreme court of Minnesota, in an action
for (hiiiiaL''cs on account of nondelivery of a telegram, says:
'"I'his action is not one of tort, but on contract We are
thcrotMi',' left to (h'termine the (piestion bore presented accord-
ing to tlic lailcs of common law applicable to damages for breach
of contract": brancis v. Western Union Tel. Co., 58 Minn.
252. !9 Atii. St. i;(>i>. 507, 59 X. W. 1078, 25 L. E. A. 40G. If
this prciinse he admitted, it must aho be conceded that the con-
Jan. 1904.] Cowan v. Westekn Union Tel. Co. 273
elusion announced by that eminent court is supported by many
precedents. We cannot agree, however, that, in a case of this
kind, pkiintiff is limited to his damages as for a breach of con-
tract. True, appellant's undertaking to transmit the message was
a contract obligation ; but negligence in the performance of that
obligation, by which injury results to the sender, is a tort, dam-
ages for which are not restricted by rules applicable to ordinary
actions for breach of contract. The appellant company is en-
gaged in a public employment, and is, within certain limits, to
l>e considered and treated as a common carrier : Gillis y. "West-
ern Union Tel. Co., 61 Vt. 461, 15 Am. St. Eep. 917, 17 Atl.
736, 4 L. R. A. 611 ; Parks v. Alta California Tel. Co., 13 Cal.
^^^ 422, 73 Am. Dec. 589. As such, it is charged with a com-
mon-law duty, and '^an action may be brought in tort, although
the breach of duty is the doing or not doing of something con-
trary to an agreement made in the course of such employment" :
Southern Express Co. v. IMcYeigh, 20 Graft. 264. "A breach
of duty of a common carrier is a breach of the law, for which
an action lies, and which wants not a contract to support it":
Bretherton v. Wood, 3 B. & B. 54, 6 Moore, 141, 9 Price, 408;
Burkle v. Ells, 4 How. Pr. 288; McPeek v. Western Union
Tol. Co., 107 Iowa, 362, 70 Am. St. Eep. 205. 78 K W. 63,
43 L. li. A. 214. This principle is discussed with great clear-
ness and thoroughness in Brown v. Chicago etc. Ey. Co., 54
Wis. 342, 41 Am. Eep. 41, 11 N. W. 356, 911, v/here it is
said in reference to the facts pleaded as constituting action-
able negligence : "All these matters are a breach of contract to
carry the passenger safely, yet the carrier is held liable in an
action for tort All the cases hold that the person in-
jured through the negligence or carelessness of the carrier may
proceed either upon contract, alleging the negligent acts of the
defendant as a breach of the contract, or he may proceed in
tort, niakiiig the negligence of the company the ground of his
right of recovery."
The allegations by the plaintiff of contractual relations with
the defendant does not necessarily make the action one upon con-
tract, for tiiose matters are often properly pleaded by way of
inducement preliminary to an allegation of facts constituting
a tort. Xor is this rule peculiar to actions against carriers:
Britt V. Pitts, 111 Ala. 401, 20 South. 484; Fordycc v. Xix, 58
Ark. 136, 23 S. W. 9G7; Leeds v. Eichmond, 102 Tnd. 3:2. 1 X.
E. 711; Carter v. Glass, 44 :\nch. 154, 38 Am. Eep. 240, G X.
W. 200; Stanley v. Bircher, 78 Mo. 245; Ashmore v. Pennsyl-
vania Steam Towing Co., 28 X. J. L. 180; Dungan v. Eead,
Am. St. Rep. Vol. 101—18
274 Amepjcan State Repoiits^ Vol. 101. [Iowa,
167 Pa. St. 393, 31 Atl. G39 ; Harvey v. Skipwith, IG Gratt. 393;
Nelson v. Harrington, 72 Wis. 591, 7 Am. St. Eep. 900, 40 X.
W. 228, 1 L. R. A. 719.
If, then, we may treat this action as one ex delicto, rather
than ex contractu, it becomes important to note the enlarged
^^** scope of the claim for recoverable damages. In an ac-
tion upon contract it is usually laid down that no damages
can be recovered save those which may reasonably be supposed
to have been contemplated by the parties as the probable result
of a breach of the agreement, and this is the principle almost
invariably appealed to or relied upon by the courts which deny
the liability of telegraph companies for damages on account of
mental suifering. Eecoveiy in tort is not thus limited. The
rule applicaJjle to such cases is that "a, party who commits a
trespass or other wrongful act is liable for all the direct in-
jury resulting from such act, although such resulting injury
could not have been contemplated as a probal)le result of the
act done" : Brown v. Chicago etc. Ey. Co., 54 Wis. 342, 41 Am.
Eep. 41, 11 N. W. 356, 911; Keenan v. Cananaugh, 44 Yt. 268;
Metallic etc. Co. v. Fitchburg E. E. Co., 109 Mass. 277, 12 Am.
Eep. 689; Hill v. Winsor, 118 Mass. 251; 1 Sedgwick on Dam-
ages, 130, note; Bowas v. Pioneer T. L., 2 Saw. 21, Fed. Cas.
Xo. 1713. Under this rule it has often been held that damages
for mental suffering may be recovered, and such allowance has
not been strictly confined to wrongs involving bodily injury.
The Minnesota court, which, as we note in the Francis case,
denies the right of such recovery against a telegraph company
on the tlieor}' that the action is ex contractu, has not hesitated
to allow damages of this nature in certain actions in tort: Lar-
son V. Chase, "47 ^linn. 307, 28 Am. St. Eep. 370, 50 X. W.
238, 14 L. E. A. 85. In the cited case, plaintiff alleged the
wrongful dissection by the defendant of the dead body of her
]iu,sl>and, and asked for damages on account of mental suffer-
ing alone. The court after noting the confusion which lias
arisen in the cases "as to when, if ever, mental suffering, as a
distinct olciiiont of damages, is a subject for compensation."
says: ''']^>ut where the wrongful act constitutes an infrin,2:o-
ment nn a h'gal ri,trht, mental suffering may be recovered for,
if it is llic (lircct. proximate, and natural result of a wrongful
act Th;it mental sufToring would ordinarily be the nat-
ural and proxiiiiato result of knowledge that ^^"^ the remains of
tlie der-oasiMl liur^'and hail been mutilated is too ])lain to admit of
ai-gument." The decisions which rccoixnize the ri<2ht to recover
Jan. 1904.] Cowan v. Western Union Tel. Co. 275
damages for mental pain and anxiety caused by negligence of a
telegraph company in transmitting messages involving matters
of life and death need no better justification than is found in
the principles here so clearly stated.
The thought urged upon our attention, that claims of this
nature should he disallowed because of the impossibility of pro-
viding any exact standard or measure of compensation of in-
jured feelings, and that recognition of such right of recovery
will be followed by an enormous increase of litigation, does not
impress us as a persuasive consideration. It is no more diffi-
cult to fix a compensation for mental anguish in cases like the
or.e at bar than in cases of mental suffering arising from physical
injury, and very few persons, we think, will be found ready to
say the latter, when wrongfully occasioned, should not afford
a ground of recovery. As to the prospect of vastly increased
litigation, the fears expressed by the appellant find little foun-
dation in the judicial history of the state. The Mentzer case
was decided ten years ago, and the present is the first occasion
we have had in that decade to again consider the precise ques-
tion there presented. This showing is a pretty fair indication
that the doctrine there affirmed has not proved, and is not
likely to prove, the opening of a Pandora's box of evil for the
vexation or destruction of legitimate business.
2. It is finally insisted that plaintiff's petition does not state
a cause of action, because, while it alleges the negligence of de-
fendant, it does not allege the absence of contributory negli-
gence on her own part. We think the rule contended for is not
applicable in this case. Our statute provides (Code, section
216-i) that a telegraph company is liable for all mistakes or
delays in transmitting or receiving messages over its lines, and
that, in actions brought to recover damages thus caused, the
burden is upon the company to prove that the mistake or delay
is not due to its own negligence. ^'^^ This, we think, relieves
the plaintiff from the necessity of alleging that she did not con-
tribute to her own injury.
We find no error in the record, and the judgment of the
district court is affirmed.
Mental Anc/uish as an element of damages is considered in the
monographic note to West v. Western Union Tel. Co., 7 Am. St. Kep.
534-537. And damages for mental pain resulting from negligence in
sending a telegram is considered in the monograpliie notes to Western
Union Tel. Co. v. Cooper, 10 Am. St. Rep. 788-790; Western Union
Tel. Co. V. Luck, 66 Am. St, Eep. 873-875. On this question the au-
^'^'6 American State Eeports, Vol. 101. [Iowa,
thorities are conflicting: See the recent cases of Western Union Tel.
Co. V. Waller, 96 Tex. 589, 97 Am. St. Eep. 936, 74 S. W. 751; Gray v.
Telegraph Co., 108 Tenn. 39, 91 Am. St. Rep. 706, 64 S. W. 1063, 56
L. R. A. 301; Connelly v. Western Union Tel. Co., 100 Va. 51, 40 S. E.
618, 56 L. R. A. 663, 93 Am. St. Rep. 919, and cases cited in the cross-
reference note thereto. Damages for fright are discussed in the
monographic note to Gulf etc. Ry. Co. v. Hayter, 77 Am. St. Rep.
862-865; Sanderson v. Northern Pac. Ry. Co., 88 Minn. 162, 97 Am.
St. Rep. 509, 92 N. W. 542, 60 L. E. A. 403,
COOLEY V. BARKEE.
[122 Iowa, 440, 98 N. W. 289.1
JUDGMENTS of Justices of the Peace — Jurisdiction Based on
Forgery.— When a contract as sued upon contains a stipulation mak-
ing it payable at a specified place, which stipulation, if genuine, would
give the justice of the peace at that place jurisdiction, and it is
there sued upon and judgment rendered by default, such judgment is
void if such stipulation was in fact a forgery, being added to the
contract after its execution without the authority of the maker, (p.
278.)
JUDGIMENT, Relief from in Equity — Laches. — A party cannot
1-te denied reUcf from a void judgment, because of laches, where there
has liccn no attempt to enforce it, because, until then, the complainant
had no occasion to act. (p. 278-.)
JUDGMENT, ReUef Against, Though It is Shown that the
Defendant was not Indebted. — In a suit to enjoin the enforcement
of a judgment on the ground that it is void, the complainant is not
required to show that he is not indebted on the cause of action which
was the ])aisis of the suit. (p. 278.)
Suit to enjoin the levy of an execution and the enforcement
of a judi^nicnt of a justice of the peace of Pottawattamie county
rendered a.ii^ainst a nonresident of that county. Phiintiff's peti-
tion was dismissed and he appealed.
Jolm Lindt and Temple, Ilardinger & Temple, for the ap-
pellant.
J. r>. Sweet and Stone & Tingley, for tlie appellees.
4*0 D]-:I-:MER, C. J. Plaintiff is a resident of Clarke county,
Iowa. In tlie year 1898 he gave an order for lightning-rods
"*■** to an agent of Cole Brothers, a copartnership doing busi-
ness at Council Bluffs, in Pottawattamie county. The rods
were erected, and ])laintiff refusing to pay therefor, an assignee
of the contract brought action for the contract price before a
Jan. 1904.] Cooley v. Barker. 277
justice of the peace in and for Pottawattamie county, and exhib-
ited an instrument which, on its face, made the contract price
payable at Council Bluffs, Iowa. A notice of the action, reciting
that the contract was by its terms to be performed at Council
Bluffs, was served upon plaintiff in Clarke county, Iowa; and,
as he failed to appear before the justice of the peace on return
day, a judgment was rendered against him for the contract
price, which was afterward transcripted to the district court of
Pottawattamie county. Thereupon an executic-n issued, which
was about to be levied upon plaintiff^s property in Clarke county,
whereupon this action was commenced in Pottawattamie county
against the plaintiff in the judgment and the officer having the
execution, to enjoin the levy thereof and to restrain the en-
forcement of the judgment.
Claim is made that the justice who rendered the judgment
was without jurisdiction, for the reason that while the contract,
as presented to him, was made payable at Council Bluffs, yet
this provision was not in the contract when he signed it, and
that it is in fact a forgery. This is denied, and this denial
raises an issue of fact, which must first be determined before
we reach the legal propositions involved. An examination of
the record leads us to the conclusion that plaintiff's contention
as to the facts is true, and that the instrument, when signed by
him, did not contain this provision for payment at Coimcil
Bluffs. It was this provision which, under our statute, gave the
justice jurisdiction of the case. Without it, he had no juris-
diction of a resident of another county. Even if the defendant
had appeared, this would not, under our decisions, have given
the justice jurisdiction. But as he did not appear, but made
default, that question is out of the case. A court which in fact
has no jurisdiction cannot, by deciding that it has, confer upon
itself the right '*'*^ to adjudicate a controversy. This is funda-
mental doctrine, although there are exceptions in some cases
which come dangerously near overthrowing the rule. With
these exceptions we have nothing to do in this case, save to say
that they do not apply.
Appellees contend that the justice was required to determine
this matter before rendering judgment, and that his finding
is conclusive. This contention has support in a few jurisdic-
tions, notably in ISTew York, but to our minds is unsound in
theory and vicious in its application. If the court in fact has
no jurisdiction, its judgment is subject to attack whenever and
wherever the question arises, and it is permissible in such cases
278 American Statp: Eeports, Vol. 101. [Iowa,
to show by parol evidence that the facts which apparently gave
jurisdiction were untrue. If this were not true, one migiit bo
concluded by a court having no right to take cognizance of the
subject matter. In Porter v. Welch, 117 Iowa, 111, 90 N. W.
583, we held that a justice has no jurisdiction over a resident
of another county, even upon appearance by that party, and
that the objection of want of power or right in such cases goes
to the subject matter, rather than to the parties. But we need
not go that far here. The provision for performance at Coun-
cil Bluffs was the only thing that gave the justice jurisdiction,
and, if there was no such provision when plaintiff herein signed
the contract, then the justice had no right to consider the case.
Plaintiff, knowing that fact, might very well have given no
attention to the notice which was served upon him, for he knew
that, whatever the justice might do, the conclusion would not
be binding upon him : Hamilton v. Millhouse, 46 Iowa, 71. Of
course, if the justice had jurisdiction and the right to decide,
and plaintiff herein was relying simply on his defense of altera-
tion of the instrument to defeat recovery, a different question
would be presented. In such a case he should have made his
defense before the justice, and, in the event of failure to do so,
would be concluded by the judgment. This clearly illustrates
the distinction between a right decision and the right to decide.
In one case the judgment is conclusive, and in ^^'"^ the other
it is not. This feature of the case is ruled by Gregory v.
IIowcll, 118 Iowa, 26, 91 N. W. 779.
Appellees also contend that plaintiff is not entitled to relief
because of laches, and for the furtlier reason that he does not
show tliat he was not in fact indebted to the plaintiff in the
judgment. There is no foundation either in fact or law for the
first proposition. Plaintiff had no occasion to act until some
attempt was made to enforce the void judgment. When that
was done, he brought his action. It was timely, and defend-
ants were in no manner prejudiced by the delay. As to the
second ]ioint tlie ca?es heretofore decided by this court are
a,L^ain>t appellees' claim. If the judgment is absolutely void,
as this one was, flie plaintiff was not required to show that he
was not indebted on the cause of action Avhich was the basis
of the puit: Arnold v. TTawley. 67 Iowa. 313. 25 X. W. 259;
Tlonkle v. Uoliiios. 97 Iowa. 695. 66 N. W. 910; Spencer v.
P>erns, lU Town. 26. 98 X. W. 209, and cases cited.
We do not ^ot out tlie evidence on which we rely for our
conclusion on tlie issue of fact. Suflice it to say that it strongly
Feb. 1904.] Engbretson v. Seiberling. 279
preponderates in favor of the plaintiff's contention, and is suffi-
cient, we think, to justify the relief asked.
The case will be reversed and remanded to the lower court
for a decree in harmony with this opinion.
If a Judgment is void for want of jurisdiction over the parties,
it generally may be vacated on motion, no matter what length of
time has elapsed since its entry: See the monographic note to Furman
V. Furman, 60 Am. St. Eep. 642, 660. Consult, also Heppe v. Szcze-
panski, 209 111. 88, 70 N. E. 737, ante, p. 221, and authorities cited
in the cross-reference note thereto. The question of extrinsic evi-
dence for and against jurisdictional infirmities in such cases is con-
sidered at pages 644-647 of the above note.
ENGBRETSON v. SEIBEELING.
[122 Iowa, 522, 98 N. W. 319.]
ACCOED AND SATISFACTION, Payment in Part, When
Amounts to. — The acceptance from an insolvent debtor of part pay-
ment in full satisfaction of a claim is founded on such a considera-
tion that the entire debt is discharged, (p. 2S2.)
Suit to enjoin the enforcement of an execution on the
ground that the judgment had been satisfied. Judgment for
tlie defendants, and the plaintiff appealed.
E. P. Johnson, for the appellant.
E. ^Y. Cutting, for the appellees.
^^^ McCLAIX, J. It appears from the allegations of plain-
tiff's petition, which are in accordance with the evidence intro-
duced on the trial, that J. F. Seiberling & Co., being tlie
owners of a judgment recovered by them against this plaintiff
for two hundred and fifty-six dollars, accepted from such judg-
ment debtor the sum of sixty-five dollars in cash and his prom-
issory note for twenty-five dollars, in full satisfaction of said
judgment. J. F. Seiberling & Co. subsequently assigned the
judgment to W. H. Carter, wlio caused execution to issue there-
on. It is further averred and proved that at the time the agree-
ment was made to accept the partial payment in full satisfaction
Engbretson was insolvent. The sole question for our consid-
eration is whether the acceptance ^-^ from an insolvent debtor
of part payment in full satisfaction of a claim is founded
upon such consideration that the entire debt is thereby dis-
280 American State Reports^ Vol. 101. [Iowa,
charged. The general rule that an agreement to accept part
payment in full satisfaction is invalid for want of considera-
tion, and the usual exceptions to that rule, have been often con-
sidered by this court, and a general citation of authorities on
the subject is unnecessary: See Marshall v. Bullard, 114 Iowa,
462, 87 N. W. 427, 54 L. R. A. 862; Lamed v. Dubuque, 86
Iowa, 166, 53 N. W. 105; Stroutenberg v. Huisman, 93 Iowa,
213, 61 N. W. 917; Ruddleedin v. Smith, 36 Iowa, 669. But
in none of these cases, nor in any others decided in this state,
do we find an express exception, such as that insisted upon
by the plaintiff in this case. We do, however, find suggestions
in each of those cases indicating the existence of the thought
that peril aps such an exception should be made in a proper case.
In Marshall v. Bullard, 114 Iowa, 462, 87 N. W. 427, 54 L. R.
A. 862, it is said : "If, however, such an agreement is supported
by any new consideration, though insignificant or technical
merely, if valuable, it will be upheld. Thus, if a part is to
be and is paid before due, or at a place other than that at
which the obligor was legally required to pay, or a payment is
made in property, no matter what its value, or by the debtor
in composition with his creditors generally, in which they agree
to accept less than their demands, the consideration is held to
be sufficient.'*' And it was decided in that case that if the
debtor, having no other way of obtaining the money which he
was to pay in satisfaction of the del)t, induced another to pay
it for him, the acceptance of a less sum than the full amount
of the debt thus procured to be paid by another would support
an agreement to discharge the entire debt. In Larned v.
Dubuque, 86 Iowa, 166, 53 :N. W. 105, the court adverted to
the fact that the defendant, relying on part payment in satis-
faction of the entire indebtedness, might, in one sense at least,
be said to have been an insolvent debtor, and the court in that
case says that an agreement to accept part payment in full
satisfaction of a judgment, if fully executed, is valid as a dis-
charge of the entire judgment. And in Stroutenberg v. Huis-
man, 93 Iowa, 213, 61 X. W. 917, it is said, as a reason for
sustaining the full release ^^4 ^f ^ judgment on part payment,
that "the setilenicnt avoided litigation, settled the dispute, can-
celed the judgment, and secured the payment of seventy-five
dollars from tho insolvent debtor." In Ruddleedin v. Smith,
3G Iowa. (ic.O. this language is used: "It is true that the amount
realized bv tlie judgment ])laintifTs was less than half the
amount of their judgnient, but the defendant therein was in-
Feb. 1904.] Engbretson v. Seiberling. 281
solvent, and the real property they had purchased under their
execution sale was subject to a prior encumbrance."
It cannot be claimed that these cases are by any means con-
clusive upon us in the determination of the question now for
the first time squarely and clearly presented, but they certainly
indicate a predisposition to regard the insolvency of the debtor
as a matter which might be considered in determining the valid-
ity of an agreement to accept part payment in full discharge.
There is some support for such a proposition in the decisions of
other courts. In Curtiss v. Martin, 20 111. 557, the court, after
stating the general rule, says (at page 577) : "But if a smaller
sum be taken by way of a compromise of a controverted claim,
or from a debtor in failing circumstances, in full discharge of
the debt, no reason is perceived why it should not be binding
on the parties." In Dawson v. Beall^ 68 Ga. 328, it is held that
an agreement by a debtor not to go into bankruptcy, and there-
by be discharged from the payment of the debt, furnishes a
sufhcient consideration to support a contract by the debtor to
take less than the full amount thereof, and substantially the
same conclusion is reached in Hinckley v. Are}^, 27 Me. 362.
So, in Pettigrew Machine Co. v. Harmon, 45 Ark. 290, it was
held that part payment by an assignee for the benefit of cred-
itors, accepted in full satisfaction, was binding. In Rice v.
London etc. Mtg. Co., 70 Minn. 77, 72 N. W. 826, it was held
that acceptance from the administrator of an estate of part
payment in full satisfaction of a claim against the estate was
binding, although it subsequently appeared that the estate was
not insolvent. The only case which we have been able to find
to the contrary is that ^^^ of Pearson v. Thomason, 15 Ala. 700,
50 Am. Dec. 159, in which the court squarely holds that the
fact of the debtor's insolvency can have no influence in deter-
mining whether the agreement of the creditor to accept a less
sum than the entire debt in full satisfaction is without con-
sideration; for it is said, whether the debtor is insolvent or not,
the obligation to pay is not impaired, and the moral duty to
make payment remains in full force. In view of the fact that,
as indicated by the prior decisions on the question in this state,
the rule that an agreement to accept part payment in full
satisfaction is without consideration is purely technical, and
subject to many exceptions which the courts have ingrafted upon
it from time to time in order to avoid to some extent the injus-
tice which is recognized as frequently resulting from its strict
application, we are led to ado2)t as valid and reasonable the
283 American State Eeports, Vol. 101. [Iowa,
exception wliich has been hinted at or suggested, rather than
authoritatively announced, in the cases already cited. Our con-
clusion is, therefore, that plaintiff in this case had a good de-
fense to the enforcement of the judgment against him, and that
his action to enjoin the further enforcement of the judgment
should not have been dismissed as being without equity.
Eeverscd.
The Principal Case is cited and considered with other similar de-
cisions in the monographic note to Harrison v. Henderson, 100 Am.
St, Eep. 390-456.
BAXTER V. PrJTCHARD.
[122 Iowa, 590, 98 N. W. 372.]
DEEDS, Parol Surrender of a Right to Redeem from a Deed
Absolute on Its Face. — When a deed absolute on its face is given
with a parol agreement that it is given and received as security for
a debt, the grantor may, by parol agreement, surrender his right of
redemption, and vest complete title in the grantee, (p. 283.)
Suit by a judgment creditor of John E. Pritchard to have
a conveyance made by him to William C. Pritchard declared a
mortgage, and that plaintiff be permitted to redeem as a judg-
ment creditor of the grantor. Judgment for the defendants,
from which the plaintiff appealed.
Charles S. ^lacomber and William C Miller, for the appellant.
Frank II. Gains, J. C. Walters, and Gains, Kelby & Storey,
for the appellees.
'^'^ SIIEEWIX, J. At the time this conveyance was made
the land was encumbered for all or more than its market value.
There were two mortgages on the land, and a judgment against
John Pi. Pritchard which was a lien thereon. The ^^^ deed to
William C. Pritchard was in fact given as security against pos-
sible future liability on account of the grantor, but in terms it
was an ali>()luto deed, and vested in the grantee the legal title
to tl.e land: Eichards v. Crawford, 50 Iowa, 496. Xo other
writing was executed by them, and the vendor's right of redemp-
tion, therefore, rented in parol. The evidence is quite conclu-
sive that afterward, and before the plaintiff obtained his judg-
ment against John E. I'ritchard, the latter surrendered to
i'eb. 1904.J Saylor v. Paesons. 28a
William C. Pritcliard his right of redemption and the possession
of the land under an agreement whereby the latter assumed the
prior encumbrance upon the land and relieved the former from
personal liability thereon. This surrender was in parol, it is
true, but it has repeatedly been held in this state — and, indeed,
it is the general rule — that it may be so made, and that, when
so made, the title of the grantee becomes absolute : Haggerty v.
Brower, 105 Iowa, 395, 75 N. W. 321; Caruthers v. Hunt, 18
Towa, 576; Vennum v. Babcock, 13 Iowa, 194. There is noth-
ing in the claim that the title was held by William C. Pritchard
in trust for other creditors. No such issue was made, and there
is no evidence tending to prove it. We also think the plea of
former adjudication good, but we need not discuss it, inasmuch
as we shall affirm the case on its merits.
The judgment is affirmed.
Where an Absolute Deed is given as security for an indebtedness, a
bona fide afjreement may be made between the mortgagor and mort-
gagee for the extinguishment of the equity of redemption, and the
vesting of the entire title in the latter, but such an agreement will
never be sustained unless the transaction ig fair and unaccompanied
by ojipression, fraud or undue influence: Cassem v. Heutis, 201 111.
208, 94 Am. St. Eep. 160, 66 N. E. 283. See, however, the mono-
graphic note to Bradbury v. Davenport, 55 Am. St. Eep. 102, 103, on
contracts to waive or release the equity of redemption.
SAYLOR V. PAESOXS.
[122 Iowa, 679, 98 N. W. 500.]
NEGLIGENCE, Contributory in Attempting a Rescue. — One
who seeks to rescue another from imminent danger, thereby imperil-
jnrr liis own life, is not necessarily guilty of contributory negligence.
He who springs to the rescue of another, encountering great danger
to himself, is not to be denounced as negligent, but the propriety of
his conduct is to be loft to the judgment of the jury. (p. 284.)
NEGLIGENCE, Recovery for Injuries Suffered in Attempting
a Rescue. — An employe who, in attempting to rescue one of his em-
ployers from immediate danger, is himself injured, cannot recover
from his employers or the one rescued, unless it appears that he or
they were guilty of some negligence toward such rescuer, (p. 287.)
NEGLIGENCE in Placing One's Self in Peril Resulting in In-
jury to the Rescuer. — One who places himself in peril is not guilty
of negligence toward another which entitles the latter to recover
for injury suffered in attempting to rescue the former from his peril,
(pp. 287, 288.)
284 American State Eeports^ Vol. 101. [Iowa,
Action against G. W. Parsons and Parsons, Kich & Co.
to recover for personal injuries sustained by the plaintiff. The
trial court directed a verdict for the defendants, and the plain-
tiff appealed.
E. J. Salmon, N. T. Guernsey and Graham & Morgan, for
the appellant.
W. 0. McElroy and C. 0. McLain, for the appellees.
*^''*^ LADD, J. The plaintiff had been employed by Parsons,
liich & Co. as a blacksmith. That firm had concluded to en-
large its factory, and on the eleventh day of ISTovember, 1898,
directed plaintiff, with others, to assist in removing a one-
story addition thereto. This addition was about twenty-four
feet square, with brick walls running against, not into, the
main building. After the roof had been removed they pro-
ceeded to take down the north and east walls. The south
wall was to be extended as a part of a larger building. Af-
ter a portion of the east wall had been removed, the other
employes went to work elsewhere, but plaintiff continued un-
til the brick bad been taken away within a few feet of the
ground. He then took out a window frame, and in return-
ing ^so through a doorway in the east wall after setting it
a^ide, noticed tliat Parsons, who had been overseeing the work,
and also working with the men, bent over next to the north wall
undermining it at the bottom with a iivc-foot iron bar. He
was but twelve or fourteen feet distant, and the wall appeared
to be toppling over toward him. Believing Parsons to be
in imminent danger, plaintiff seized a piece of scantling two
inches by four or six inches and about seven feet long, rushed
over and threw it against the wall about two feet from the
top, and over a window, to prevent the w^all from falling.
Parsons immediately rose up and withdrew without serious
injury. P)ut the brick against which plaintiff's prop had
liecn placcil gave way, letting plaintiff forward, and he was
caught l)y tlie falling wall, and his leg so crushed that am-
putation was necessary. The wall was then about ten feet
liigh at one end and eight feet at the oilier, with an aperture
for a window about two and one-half feet wide and five feet
birrh. Parsons was about three or four feet west of this win-
dow. Su]iso(|ucn1ly. in expressing his sympathy wdth plain-
tiff, ho said to biin that but for his coming as he did. he
(Parsons) mi,oht have been crushed and killed. Upon the
Feb. 1904.] Sayloe v. Parsons. 2S5
conclusion of the evidence in behalf of plaintiff tending to es-
tablish facts as stated, the jury, on motion, was directed to re-
turn a verdict for the defendants.
1. A person who seeks to rescue another from imminent dan-
ger, thereby imperiling his own Kfe, is not necessarily guilty of
contributory negligence. "The law has so high a regard for
human life that it will not impute negligence in an effort to
preserve it, unless made under such circumstances as to con-
stitute rashness in the judgment of prudent persons": Eckert
V. Long Island E. E. Co., 43 N. Y. 502, 3 Am. Eep. 721. In
Cottrill V. Chicago etc. Ey. Co., 47 Wis. 634, 32 Am. Eep. 796,
3 JST. W. 376, an engineer had continued at his post in order
to save life, and the court, in reversing the finding of a jury that
he was negligent in not jumping from the engine, said: ''Ac-
cording to the common appreciation of human conduct and
character, this evidence ***'^ presents an example of heroic
bravery and fidelity of duty at the post of danger most praise-
worthy and commendable, and an occurrence worthy of lasting
record in the book of heroic deeds To hold as a matter
of law in this case that the deceased was guilty of want of ordi-
nary care and prudence, as the engineer in charge of the loco-
motive and train, in not jumping off at this crisis and aban-
doning his engine, from the mere apprehension of ujicertain
danger, would make a legal precedent very dangerous to the
railway service in life and property, and by wliich it would
be exceedingly difficult, if not impossible, to distinguish the
cases and the circumstances in which it would or would not
be the duty of an engineer to jump off and desert his engine,
or to detei-mine in point of time when he should do so, and
the necessity or prudence for him to do so'": See, also, Cen-
tral Ey. Co. v. Crosby, 74 Ga. 737, 58 Am. Eep. 463. Cases
involving the rescue of adults as well as infants from immi-
nent danger are numerous, and the principle seems to be well
established that he who springs to tbe rescue of another, en-
countering great danger to himself, is not to be denounced
as negligent, but that the propriety of his conduct is to be
left to the judgment of the jury: Pennsylvania Co. v. Lang-
cndorf, 48 Ohio St. 316, 29 Am. St. Eep. 553, 28 N. E. 172,
13 L. E. A. 190; Linnehan v. Sampson, 126 Mass. 506, 30 Am.
Eep. 692; Becker v. Louisville etc. Ey. Co., 110 Ky. 474, 96
Am. St. Eep. 459, 22 Ky. Law Eep. 1893, 61 S. W. 997, 53 L.
E. A. 267; Maryland Steel Co. v. Mamey, 88 Md. 482, 71 Am.
St. Eep. 441, 42 Atl. 60, 42 L. E. A. 842; Thompson's Com-
286 American State liEroRXs^ Vol. 101. [Iowa,
mcntarics on Kegligence, sec. 198. Sec Liming v. Illinois
Cent. E. Co.^ 81 Iowa, 21G, 47 N. W. GG.
2. But negligence on the part of the defendant either toward
tlie person ret cued or the party making the rescue after the
attempt has been begun is essential to a recovery in all cases.
This was illustrated in Evansville etc. R. E. Co. v. Hiatt, 17
Ind. 102, where a son undertook to rescue his father from in
front of a moving train on a bridge, and recovery was denied
for that the ^*^^ employes of the railroad company did not
observe either in time to avoid a collision. In Donahoe v. Wa-
bash etc. Ey. Co., 83 Mo. 5G0, 53 Am. Eep. 594, the court, in
considering the liability of the company for injury to a mother
in attempting to rescue her child, perspicuously states the prin-
ciples governing cases of this character: "It is to be observed
that only when the railroad, by its own negligence, created the
danger, or through its negligence is about to stiike a person in
danger, that a third person can voluntarily expose himself to
danger in an effort to rescue such person, and recover for an
injury he may sustain in that attempt. For instance, a man
is lying on the track of a railroad, intoxicated or asleep, hut
in such a position that he cannot be seen by the men manag-
ing an approaching train, and they had no warning of his
situation, and another, seeing his danger, should go upon the
track to save his life and be injured by the train, he could
not recover unless the trainmen were guilty of negligence
with respect to the rescuer, occurring after the beginning of
his attempt. If the railroad company is not chargeable with
negligence with respect to the person in danger, the case of
tlie person who attempted to rescue him and was injured
must be determined with reference to the negligence of the
company in its conduct tow^ard him and his making the at-
tempt. In other words, the negligence of the company as to
llie person in danger is imputed to the company with respect
to him who attempts the rescue, and, if not guilty of neg-
ligence as to sucli person, then it is only liable for negligence
oecurriiig with regard to tlie rescuer after his efforts to res-
eno the juTson liad commenced": See, also, Gramlicli v.
AVurst. 80 Pa. St. 74. 27 Am. Eep. 684. It is not pretended
that plaiiiiiff was not assigned a safe place to do his work,
nor is it chiinu'd there was any want of care with respect to
him after he Ix'gan Iris efforts to sustain the wall with the
stick. But was fliere any negligence on the part of defend-
ants toward Parsons, the person rescued? The law of negli-
Feb. 1904.], Sayloe v. Parsons. 287
gence is based on the relative rights and duties of one per-
son toward another. Says Judge Thompson, in his Com-
mentaries **^^ on the Law of Xegligence, section 3 : "An essen-
tial ingredient of any conception of the law of negligence is
that it involves the violation of a legal duty which one person
owes another — the duty to take care for the safety or prop-
erty of the other; and the converse proposition is that, where
there is no legal duty to exercise care, there can be no action-
able negligence. Therefore, it is reasoned that a plaintifE
who grounds his actions upon the negligence of the defend-
ant must show not only that the conduct of the defendant
was negligent, but also that it was a violation of some duty
the defendant owed to him.^' These principles are of uni-
versal recognition in text-books and decisions.
Undoubtedly Parsons owed the moral duty of protecting
his own person from harm. But the love of life is regarded
as a sufficient inducement to self-preservation, all that is
deemed essential for the government of persons in matters
affecting themselves alone. Where no one else is concerned,
the individual may incur dangers and risks as he may choose,
and in doins: so he violates no legal dutv. He cannot be
guilty legally, though he may be morally, of neglecting him-
self. It matters not whether he (Parsons) was vice-prin-
cipal or fellow-servant, as he voluntarily undertook on his
own motion to undermine the wall. This endangered no
one's life but his own. If he was in peril, it was because ho
placed himself there. There was no negligence on the part
of either defendant as to him, and for this reason there could
have been none as to his rescuer. To illustrate : suppose a
person with intent to suicide should jump into the river, and
another, seeing his peril, but without knowledge of his intent,
should leap in after him and in attempting to save him be
injured. Would anyone contend that the latter could recover
the damages resulting from the former or his administrator?
Certainly not, and for the reason that negligence conld not
be imputed to the suicide. His was the dereliction of a moral,
not a legal, duty to himself; for to take one's own life, though
a crime at the common law, is not so declared by our coflc.
It may bo said, however, that Parsons ought, **** in placing
himself in peril, to have anticipated that someone would,
upon discovering his danger, undertake to shield him from
harm. But this was a contingencv which, as it scorns to us,
would not be likely to be contemplated. In the first place,
288 American State Eeports^ Vol. 101. [Iowa,
there is nothing in the record to indicate that Parsons, in
the exercise of ordinary care, could not have undermined
the wall with safety to himself. That he so intended must
be presumed, for the presumption in favor of prudence is
always to be indulgegl until the contrary appears. If, then,
he might have performed the work with safety to himself,
neither he nor the company is chargeable with negligence for
not anticipating that he would do it otherwise, and that, if
he so did, somebody would attempt to rescue him. JSior is
the probability of receiving such assistance a matter which a
person of ordinary diligence, in undertaking a perilous en-
terprise, would be likely to take into consideration. Men do
not expose their lives to danger wdth the idea that others will
protect them from harm by risking their own lives. Though
history teems with accounts of heroic conduct and self-sacri-
fice, deeds of this kind have not become so common that they
are to be anticipated as likely to occur whenever opportun-
ity is afforded. The instincts of self-preservation still so
dominate human conduct that acts like that under consider-
ation, in which life itself was risked for the protection of
another, are of such rare occurrence as always to command
tlie special attention and admiration of the entire community,
and by tlie common voice of mankind those who do them
are singled out as worthy of enrollment on the scroll of heroes.
P>ccau>e of tlieir infrequency, however, it cannot be said they
should enter into the calculations of men as at all likely in
the ordinary transactions of life. As they spring from mag-
nanimity, magnanimity must be relied upon in cases like this
for reparation.
Affirmed.
The Conditio}}.^ yeecf^sary to Entitle One to Recover for injnrieg
RuOVreil in resr'uiii^r another from rlanc^cr are: That the peril of the
['("■rson A\-hose rescue is soiifrht shall be due to the neorlierenee of the
ilifcn<"Iant. an<l that the rescue shall not he attempted in such a man-
ner, or undor such circumstances, as to constitute recklessness. When
ihoso two conditions are present, a recovery can he had: Pittsbur;^
ptc. Ky. Co. V. T,yneh. 69 Ohio St. 12.3, 63 L, ed. 504, 68 N. E. 703, 100
Am. St. Kep. G."8, and cases cited in the cross-reference note thereto.
Feb. 1904.] IIoFi? V. Shookley. 2Sd
HOFF V. SHOCKLEY.
[122 Iowa, 720, 98 N. W. 573.]
INDEPENDENT CONTEACTOR, Liability of Land Owner for
Negligence of. — If the owner of property employs another to build
a house thereon, and the latter causes sand to be hauled and piled
up in the street in front of the premises, and negligently leaves
the pile of sand unmarked by danger signals of any kind, whereby
another driving along the street, at night, in a buggy, is overturned
and injured, the land owner is not liable, because the negligence is
not that of a servant, but of an independent contractor, (p. 293.)
APPEAL AND ERROR.— The Failure to Perfect an Appeal at
the Term specified in the notice does not entitle the respondent to
a dismissal, nor prevent the notice from being operative to give
the appellate court jurisdiction, (pp. 295, 296.)
xlction to recover for personal injuries. Verdict and judg-
ment for the plaintiff; the defendant appealed.
James A. Merritt and J. K, Macomber, for the appellant.
Carr, Hewitt, Parker & Wright, for the appellee.
''-^ McCLAIN", J. The defendant, Mrs. Shockley, procured
a building permit from the proper city authorities for the erec-
tion of a dwelling-house on her lot abutting upon a paved street,
and then made a written contract wath one Wyn:burn to con-
struct jsuch house, the contractor to furnish all the labor and
material, exce]3t brick, which was to be furnished by defendant.
In the course of the work, Wynbum caused sand to be hauled
and piled up in the street in front of defendant's lot, the place
for depositing it being selected with the approval of defendant's
husband. This pile of sand being left unguarded and unmarked
by danger signals of any kind, the plaintiff, driving along the
street at night in a buggy with his wife, drove upon it and the
buggy was overturned, and plaintiff's wife was thrown out and
injured. Wynbum and two others were made codefendants
with Mrs. Shockley, but the action was dismissed or abated with
reference to the two other defendants, and verdict and judgment
for four thousand seven hundred dollars were returned and en-
tered against Mrs. Shockley and Wynburn. As Wynburn does
not appeal, the case will be treated as one against Mrs. Shock-
ley alone.
Tlie sole question necessary to consider is whetlier, under
the facts, as to wliich there is practically no dispute, defend-
ant is liable for what may be conceded to liave been the neg-
Am. St. Rep. Vol. 101—19
290 American State Kepokts^ Vol. 101. [Iowa,
ligence of Wynburn in allowing the pile of sand to remain in
the street unguarded, and in such condition that plaintiff, in
the exercise of reasonable care, drove his buggy upon and over
it, and the injury complained of resulted proximately therefrom.
It is clearly established by the evidence that Wynburn was an
independent contractor, and it is unnecessary to cite authorities
to the general proposition that one ^^*^ who employs another to
do a piece of work according to the methods to be adopted by
the latter, and without reservation of control on the part of
the employer, except as to the result of the work done, is not
liable for injuries suffered by a third person by reason of the
negligence of the contractor in carrying on the work. There
are qualifications of the rule thus broadly stated, which need
not be here discussed. This case does not fall within any such
qualifications or exceptions, unless it be some exception or quali-
fication predicated upon the fact that defendant was the owner
of the premises on which the improvement was being made, and
allowed a dangerous obstruction, created through the con-
tractor's negligence, to exist in the street in front of sucli prem-
iseft.
Such a state of facts was held in Bush v. Steinman, 1 Bos.
& P. 404, to render the owner of the premises liable, and if
the doctrine there announced has been adhered to in subse-
quent decisions, and remains a correct exposition of the law,
then the judgment against the defendant is well founded. As
the case cited is typical, it will facilitate the discussion to quote
the statement of facts from the report : *'The defendant, hav-
ing purchased a house by the roadside (but which he had never
occupied), contracted with a surveyor to put it in repair for
a stipulated sum ; a carpenter, having the contract under the
surveyor to do the whole business, employed a bricklayer under
him; and be. again, contracted for a quantity of lime with a
lime l)urner, by whose servant the lime in question was laid in
tlie road."' Under this state of facts, the lord chief justice of
tlie Englisli court of common pleas, before whom the case was
tried, was of of>inion that the defendant was not answerable for
the injury sustained by the plaintiff l)y reason of tlie lime being
pilfd in the liigbway. But to get the case before the full Ijcnch,
a verdict was taken for the plaintiff, with leave to defendant
to move for a nonsuit. After full consideration, the court
agreed tliat iho action could be maintained, although the chief
justice still entertained doubts as to the precise principle on
wliich the verdict should be sustained. I'lie rule adopted by
Feb. 1904.] Hoff v. Shockley. 291
the court is ''^^ most clearly stated by Eooke, J., who says : "He
who has work going on for his benefit and on his own premises
must be civilly answerable for the acts of those "whom he employs.
According to the principle of the case in 2 Lev. (Michal v. x\les-
tree), it shall be intended by the court that he has a control
over all those persons who work on his premises, and he shall
not be allowed to discharge himself from that intendment of
law by any act or contract of his own. He ought to reserve
such control, and, if he deprive himself of it, the law will not
permit him to take advantage of that circumstance in order to
screen himself from an action The person from whom
the whole authority is originally derived is the person who
ought to be answerable, and great inconvenience would follow
if it were otherwise." It will be noticed that the learned judge
rendering the opinion substantially ignores the distinction be-
tween the case of master and servant and one of independent
contractor. But in view of the full recognition which the doc-
trine of independent contractor has received in the modern cases,
the conclusion of the court in Bush v. Stcinman, 1 Bos. & P.
404, is to be supported, if at all, as estaMishing an exception
to the effect that the owner of fixed property owes a duty to make
the premises safe, regardless of whether the unsafe condition
complained of results from the negligence of himself or his
servants, or from the negligence of an independent contractor
and his servants. But, as applied to a case of a dangerous
nuisance in the highway in front of the owner's premises, not
caused by the act of the owner, nor of persons for wliose acts
he is responsible as master or employer, this doctrine has not
been accepted by the authorities. The courts of England have
expressly refused to follow the case of Bush v. Steinman, 1
Bos. & P. 404, and it has been distinctly and unanimously dis-
claimed as authority in this country: Hilliard v. Pichardson, 3
Gray. 349, G3 Am. Dec. 743 ; Boswell v. Laird, 8 Cal. 469, 494,
68 Am. Dec. 345 ; King v. New York Cent. etc. Py. Co., 66 N.
Y. 181, 23 Am. Pep. 37. As is said in Hilliard v. Pichartlson,
just cited: '"'Bush v. Steinman is no longer law in England.
If ever a case can '^^^ be said to have been overruled, indirectly
and directly, by reasoning and by authority, this has been. IS'O
one can have examined the case without feeling the difficulty of
the clear-headed judge. Chief Justice Eyre, of knowing on what
ground its decision was put. It could not stand on the re-
lation of master and servant. That relation did not exist. It
could not stand upon the ground of defendant having created
293 American State Eeports, Vol. 101. [Iowa,
or su(Tered a Buisance upon his own land, to the injury of his
neighbor's property. The lime was on the highway. There is
no rule to include it but the indefinitely broad and loose one that
a person shall be answerahle for any injury which arises in
carrying into execution that which he has employed another to
do — a rule which ought to have been, and was, expressly repudi-
ated.^'
The contention of counsel for the appellee seems to be this :
Defendant should have known that the carrying on of the work
by the contractor would involve the deposit of sand in the
street, and, while this would not necessarily and of itself con-
stitute a nuisance, it might become a nuisance by reason of
failure to properly guard it or warn against it, and the defend-
ant should have taken pains to see that the contractor took
proper precautions. But such an argument, if acceded to, would
require conclusions which are wholly untenable. The defend-
ant must have knbwn that it would be necessary for the con-
tractor to drive his wagons along the street in front of de-
fendant's premises, and thereby, to some extent, obstruct tlie
vise of the street while they were being unloaded. And yet
could it be claimed that the negligence of the contractor in so
driving his wagons or managing them as to injure persons using
the street would render the defendant liable? The street was
a public bighway, and the contractor used the street in carrying
out his contract subject to the same limitations as tliose imposed
upon others in the use of a public highway. But it was not the
concern of the defendant how the contractor used tbe street,
nor did defendant have any control over the use which the con-
tractor should make of the street. He might, perhaps, have
gotten permission to "^^ use the adjoining lot for tlie purpose of
])iling liis material thereon, or he might have mixed his sand
and lime at anotlier place, and transported the mortar to de-
fendant's premises as it was needed, or he might have carried
out his contract in any other manner which seemed to bim
foasil)le and proper. It was not incumbent on the defendant
to stipulate bow he should do his work. The real negligence
comphiiiird of was the failure to put out barriers or warning
ligbts, and tins was not an act as to which tbe defendant had
any re<]K>nsil)ility, or over wbich defendant had any control.
Even if (lefoudant'.s husband acted as her agent in approving the
placing of tlie sand in tbe street, his assent did not render her
liable, for the placing of the sand in the street was not a wrong
in itself: C'allanau v. Gilnum, 107 X. Y. 3G0, 1 Am. St. Eep.
Teh. 190-i.] HoFF v. Shockley. 293
831, 14 N. E. 2Gi. Such an act may be entirely proper, and
does not necessarily give rise to a nuisance. The wrong was
in leaving the pile of sand in the street at night without bar-
ricade or danger signals, so as to imperil the safety of those
using the street in the usual way. For this neither defendant
nor her husband was responsible.
Tbe conclusion which we reach — that defendant was not
chargeable with the consequences of the contractor's negli-
gence— is supported by the great weight of authority. For
instance, in Wright v. Big Eapids Door etc. Mfg. Co., 124 Mich.
91, 82 N. W. 829, 50 L. E. A. 495, it was held that a property
owner was not liable for the act of an independent contractor
in negligently piling lumber near the owner's premises. In
Sanford v. Pawtucket Street E. Co., 19 E. T. 537, 35 Atl. 67,
33 L. R. A. 564, it w^as held that the defendant, a street-car
company, was not liable for negligence of an independent con-
tractor in stretching a rope or wire across a public street in the
construction of the road. In Leavitt v. Bangor etc. Ey. Co.,
89 Me. 509, 36 Atl. 998, 36 L. E. A. 382, it was held that the
defendant company was not liable for damages by fire com-
municated from the cooking-car used by an independent con-
tractor engaged in cutting wood for the company, although the
car ''^^ stood on the company's track. In Berg v. Parsons, 156
K Y. 109, 66 Am. St. Eep. 542, 50 K E. 957, 41 L. E. A. 391,
it was held that the negligence of a contractor in blasting rock
on defendant's premises, causing damages to a building upon
the adjoining lot, did not make the defendant responsible. In
Smith V. Benick, 81 Md. 610, 41 Atl. 56, 42 L. E. A. 277, it
was held that the proprietor of a public resort employing an
independent contractor to make a balloon ascension to attract
visitors, was not liable for injury to a visitor by a pole whicb
fell because of tbe negligence of the contractor in endeavoring
to raise the pole for use in inflating his balloon. In Louthan
V. Hewes, 138 Cal. 116, 70 Pac. 1065, it was held that the
owner of a public building was not liable for the negligence
of a contractor in putting a stairway into such temporary con-
dition that it was dangerous to persons using it. In City of
Eichmond v. Sitterding (Va.), 43 S. E. 562, it was held "that
the owner of premises wa.s not liable for injuries resulting from
the negligence of an independent contractor in placing a
plank in the street in front of the premises so as to create an
unlawful obstruction. In Emmerson v. Fay, 94 Ya. GO, 26
S. E. 386, it was held that the owner of a building was not
29-1 American State EErouxs, Vol. 101. [Iowa
liable for the negligence of the servant of an independent
contractor at work on the building in dropping an iron ball
from the roof to the street below. Similarly, in Ilexamer v.
Webb, 101 N. Y. 377, 54 Am. Rep. 703, 4 N. E. 755, it was
held that the owner of a building was not liable for the negli-
gence of a contractor in allowing a plank to fall from the cor-
nice of the building^ which was in process of erection, to the
sidewalk below. In Frassi v. McDonald, 123 Cal. 400, 55
Pac. 139, 772, it was b.eld that the owner of a building in pro-
cess of erection, intrusting to an independent contractor the
•work of laying pipes in the street, connecting with the building,
was not liable for the negligence of the contractor in tearing up
the sidewalk in the prosecution of his work, and leaving it in
such condition as to be dangerous to persons passing by. In
^-' Harrison v. Collins, 8G I'a. St. 153, 27 Am. Kep. G99, it
was held that the owner of premises was not liable for an injury
resulting from the negligence of an intlepcndent contractor
ill leaving open for a short time a coal-hole in the sidewalk
iii front of the premises. And in Ililliard v. Richardson,
:i Cray, 319, G3 Am. Dec. 743, which has already been cited,
it was held that the owner of land, employing a carpenter as
ill! indei)endent contractor to alter and repair a building and
Jiirnish the materials fur the purpose, was not liable for dam-
ages resulting to a third person from boards deposited in the
highway in front of the land by a teamster in the employ of
the cunii'actor. Other illustrations are furnished by cases which
;!re cited in 1 'riionipson's Commentaries on the Law of Neg-
ligence, section ()".M) ct scq. The conclusions which we reach
are in iiai mony with the doctrine as announced by this author.
This court, has rcto^nizcd the same princij)le in Brown v. Mc-
I.cisli. Tl Iowa, :')S1^ 32 N. W. 3<S5, in which the court reverses
on account of an instruction exLeiuling the rule of respondeat
sn|)cri()r to the act of a servant or emphjye when the nuister or
employer,, by the terms of the employment, has no authority to
contiol and dii'cct the manner of the execution of the work;
ami the coiui .-avs thai if tlio employer has no control over
the workim-n. or the; nianiu'r of doing the woi'k, he is not li-
able for their negli:;eiire — such as the throwing of eartli from
ii (litcli onto a public strc^^'i, or the heaving of an unfinished
ditch open dni-ing \\\o night.
In tli(> view whicli we take of \ho case before us, the
antliorities re]i(>(l on by ap|iel!e(> are not in point. They are
cases where a pei'son is cluirged with maintaining premises
Feb. 1904.] Hoff v. Shockley. 295
in a safe condition for others — as, for instance, where the
owner of a building is required to have his premises safe, or
a city, having control of its streets, is required to maintain
them in a safe condition for the use of the public. If the
thing contracted to be done involves, as a direct consequence,
a danger which the owner of the premises or the city is bound
to avoid or to provide against, then the delegation of the work
to an independent contractor will not relieve from liability
"^^^ for consequences proximately resulting from negligence in
doing the thing thus contracted to be done. As furnishing
illustrations of this rule of liability, which is wholly distinct
from the rule as to the negligence of an independent contrac-
tor in carrying on the work contracted for, see Eailroad Co. v.
Morey, 47 Obio St. 207, 24 N. E. 2C9, 7 L. R. A. 701; Wood-
man V. Metropolitan Ey. Co., 149 Mass. 335, 14 Am. St. Ecp.
427, 21 X. E. 482, 4 L. E. A. 213; Colgrove v. Smith, 102 Cal.
220, 36 Pac. 411, 27 L. E. A. 590; Wiggin v. St. Louis, 135
Mo. 558, 37 S. W. 528; Chicago v. Eobbins, 2 Black (U. S.),
418, 17 L. ed. 298; Storrs v. Utica, 17 X. Y. 104, 72 Am. Dec.
437. The cases of Van Winter v. Henry Co., Gl Iowa, 685, 17
N. W. 94, and Wood v. Independent Dist., 44 Iowa, 27, illus-
trate this distinction and it is clearly pointed out in Eobbins
V. Chicago, 4 Wall. 657, 18 L. ed. 427, in which this language
is used : "Where the obstruction or defect caused or created in
the street is purely collateral to the work contracted to be done,
and is entirely tlie result of wrongful acts of the contractor or
his workmen, the rule is that the employer is not liable. But
where tlie obstruction or defect which occasioned the injury re-
sults directly from the acts which tlie contractor agrees and is
authorized to do, the person who employs the contractor and
authorizes him to do those acts, is equally liable to the injured
party." And see Palmer v. City of Lincoln, 5 Xeb. 13G, 25
Am. Eep. 470, wliere the same distinction is made.
The trial court therefore erred in submitting the case to
the jury on the theory that the defendant was liable for tlie
negligence of Wynburn in not sufliciently protecting the pub-
lic, including the plaintiff and his wife, from the danger in-
cident to putting the pile of sand in the street in front of de-
fendant's premises, and leaving it unguarded.
Counsel for appellee urge the insufficiency of the notice of
appeal, on the ground that no appeal was perfected at the
term of the supreme court to which, by the terms of the notice,
the appeal was taken. But we have never held that failure
296 Ami:iucan State Uepouts^ Vol. 101. [IowEj
to get the case into ''^ the siipremc court for the term speci-
fied in the notice was a ground for dismissal, or that the notice
became inoperative to give this court jurisdiction on that ac-
count. Objection is also made to the form of the notice, but
we find that, as set out in appellant's abstract, it is sulFicient.
Reversed.
Bishop, J., takes no part.
If an Independent Contractor leaves a street in a dangerous and
unguarded condition, the property owner is liable for injuries sus-
tained bv third persons: MeCarrier v. Hollister, 15 S. Dak. 366, 91
Am. St. Kep. 695, 89 N. W. 862; Drake v. Seattle, 30 Wash. 81, 94
Am. St. Eep. 844, 70 Pac. 231; monographic note to Covington etc.
Bridge Co. v. Steinbroek, 76 Am. St. Rep. 406. But see Richmond v.
Sitterding, 101 Va. 354, 99 Am. St. Eep. 879, 43 S. E. 562.
BROWN V. TAMA COUXTY.
[122 Iowa, 745, 98 N. W. 562.]
PUBLIC OFFICER — Payment of Salary to a De Facto Officer
as a Defense to an Action by an Officer De Jure. — If the salary is
paid to an oflicer de facto during his iiK'uni]>eiicy in the oflice, but
while an action contc:slincT his riglit is pending, which finally ter-
minates in an action declaring another to be, and to have l;ecn, en-
titled to the oflice, the latter cannot recover such salary from the
county so paying it. (p. 3U4.)
Caldwell & Walters, for the appellant.
R. r. Kepler and C. B. Bradshaw, for the appellee.
'^*' WEAVER, J. The petition alleges that, at tlie general
election for the }-ear 1899, plaintiff and one He Long were
opposing candidates for the oflice of superintendent of seliools
for 'J'aiiia county; tliat the board of canvassers declared plain-
tiff electi'd by a majority of three votes, and that thereupon
De Long instituied a contest as provided by law, which con-
tost was still ])cii(ling and un(l(>torniined on Januar}- 1, 190(1,
on wliicli (lay '■i)laintiff had a bond prepared and took the
oatli of (iflicc. but because of tlie pendency of said contest di<l
not file said bond until April 12. 1900." On January 2,
3 900, the court of contest decided that De Long had received
Feb. 1904.] Brown v. Tama County. 297
a majority of the votes and was duly elected. From tliis de-
cision plaintiff appealed to the district court, where the find-
ing in favor of De Long was affirmed, but on further appeal
to this court the finding of the district court and court
of contest was reversed. On being remanded to the district
court the case was again tried, and final judgment entered in
plaintiff's favor on June 21, 1901. Three days thereafter plain-
tiff's bond was approved by the board of supervisors, and he en-
tered upon the duties of the office. Plaintiff alleges that from
the beginning of his term — January 1, 1901 — he was at all
times ready and able and willing to take possession of the office
and discharge its duties, and was prevented from so doing by
the contest aforesaid. He further avers that during this in-
terval De Long was actually engaged in the performance of said
duties an aggregate of four hundred and sixty-three days, dur-
ing all of which time plaintiff was entitled to the fees, salaries,
and emoluments of said office, and would himself have per-
formed the labors and duties thereof had he not been pre-
vented by the wrongful contest above mentioned. He there-
fore demands judgment against the county for the per diem
'"*'' compensation provided by law on the basis of the number
of days' services performed by De Long during the term for
which plaintiff yvas elected. Attached to the petition is a copy
of plaintiff's bill or claim, as presented by him to the board of
supervisors before the institution of this action. It sets out an
itemized statement of the time durinfj winch De Lonor is alleired
to have been engaged in performing the duties of superintend-
ent of schools after plaintiff became entitled to the office, and is
verified by an affidavit as follows:
"The above and foregoing bill shows the number of days
in which one C. A. De Long was actually engaged in the per-
formance of the duties of county superintendent of schools of
Tama county, Iowa, as a de facto officer from Janiuiry 1,
1900, until June 2-1-, 1901, and is the actual statement of the
fees, salary, and emoluments of said office for tliat period ;
that during said period this claimant, D. E. Brown, was en-
titled to said office and was the de jure officer, l)ut was wrong-
fully excluded from said office by the said C. A. De Long by
means of a contest wrongfully instituted by the said C. A.
De Long, and carried on in the courts until said contest was
finally determined on the 21st of June, 1901. All of which
was and is well known to tlie members of this honorable board
of supervisors both severally and collectively.
298 Americax State Reports^ Vol. 101. [Iowa,
"State of Iowa J
Tama county, j
"1, D. E. Brown, on oath do say that the above account is just
and true and the service rendered as herein set forth, and that
the same has not been jjaid, or any part thereof, to said D. E.
Brown. D. E. BliOWX."
To this pleading the defendant interposed a demurrer sub-
stantially as follows: 1. It shows that plaintilf did not quality
or become entitled to the office until June 2i, 1901; 2. it
shows that, during all the time for which plaintill: demands pay,
De Long was the actual incumbent of the office, and performed
all its duties, and plaintiff performed no oiliciai service wluit-
ever; 3. Wliile it shows that plaintilf received a majority of the
\ot(.-s and was given a certificate of election by the board of can-
vassers, it does not show a sufficient '"'**' or legal excuse for his
failure to qualify and take possession of the otlice and perform
its duties; and 1. It states no fact sliowing that plaintiff was
wrongfully excluded from the othce, or prevented from per-
forming the duties thereof.
This demurrer was sustained by the trial court, and plaintiff,
electing to stand upon his petition without amendment, judg-
ment was entered against him for costs, and he appeals.
To better define the issue of law thus presented, the parties
stipulate that the defendant county had paid De I^ong the full
per (lion compensation allowed by law to superintendents of
schoiils for <'acli and every day of service rendered by him in
said Dilice during the period between January 1, 1900, and
June lM, I'Jiil, and that such payments were nuide by order
of the defendant board of supervisors with full knowledge on
tlieir part of the pendency of the contest on appeal. It is also
aiirci'd that the demurrer be considered and disposed of as if
the stipulated facts were set out in the petition.
1. County superintendents of schools are regularly elected
each odd-niiu)hered year, and are entitled to hold office for
two years: {'i^<h\ sec. ]o;-,\ The term of office regularly begins
ujiou t!ie^ iii>t Moiuhiy in January after an election is had:
Code. SIT. liHio. I]:ich su jicrintendcTit is required to give an
oiliciai bond in a sum to Ixi fixed ])y the board of supervisors.
Ivxcopt when pn'V(>nted by sickness or inclemencv of weather,
lie is required to (jualify before noon of the first ^londav in
January after hi< election bv takin!.-- tiie ])rescrihed oath of office
and giving the required l)ond : Code, see. lirT. It is made a
Feb. 1904.] Brown v. Tama County. 299
misdemeanor for any officer who is required to give bond to act
in such official capacity without having first given such bond :
Code, sec. 1197. The right to hold a county office to which
a person has been declared elected may be contested before a
tribunal duly organized for that purpose: Code, tit. 6, c. 7.
From the decision of this tribunal an appeal may be taken,
but, if the party appealing is already in '''*^ possession of the
office, the appeal will not prevent. his ouster under the judgment
appealed from, unless he gives bond, in at least double the
probable compensation of the office for six months, conditioned
that he will prosecute his appeal without delay, and if the judg-
ment appealed from be affirmed he will pay over to the success-
ful party all compensation received by him while in possession
of said office after said judgment was rendered : Code, sec. 1222.
The foregoing constitutes all the statutory provisions which
need be looked to in determining the legal relations of plain-
tiff and contestant, in respect to the office, pending the litiga-
tion between them. We have cited them, not because they af-
ford any specific remedy for the wrongs of which plaintiff com-
plains, but to make clear that this state has no statute which
prevents due consideration by us of the rules and principles
which have been recognized in this class of cases by courts of
otlier jurisdictions.
2. With the admitted facts and the statutory provisions
applicable thereto thus before us, the central question to be
considered may be stated as follows : Where, during the incum-
bency of a county officer de facto under color of title, the
county pays him the salary provided by law, can the officer de
jure, after obtaining possession of the office under final judg-
ment of ouster, maintain an action against the county for
pa^-mcnt to himself of the salary for the same period? The
decision of the courts upon this and cognate questions have
developed a marked lack of harmony, and have l)een said by
!Mr. Freeman to be "incapable of reconciliation." The same
distinguished annotator, while expressing his own dissent from
the rule, says : "If, during the incumbency of an officer de facto,
and before any judgment of ouster has been rendered against
him, the city or county of which he is such an officer do facto
pays him the salary of the office, a very decided preponderance
of authorities sustains the position that by means of such pay-
ments the right of the officer de jure to collect his salary from
such city or county is lost'' : See note to Andrews v. Porthmd,
10 Am." St. Eep. 280, "^^^ which cites Auditors v. Bcnoit, 20
300 American State Keports^ Vol. 101. [Iowa,
Mich. 17G, 4 Am. Rep. 382; State v. Clark, 52 Mo. 508; Smith
V. Mayor, 37 X. Y. 518; Westberg v. City of Kansas, G4 Mo.
493; McVeany v. Mayor, 80 N. Y. 185, 3G Am. Rep. GOO; Dolan
V. Mayor, G8 k Y^ 274, 23 Am. Ecp. 168; Steubenville v. Culp,
38 Ohio St. 23, 43 Am. Rep. 417; Shannon v. Portsmouth, 54
X. H. 183; Commissioners v. Anderson, 20 Kan. 298, 27 Am.
Rep. 171. The only cases noted by Mr. Freeman as sustaining
the opposing view are Andrews v. Portland, 10 Am. St. Rep.
280, note; Memphis v. Woodward, 12 lleisk. 499, 27 Am. Rep.
750; Savage v. Pickard, 14 Lea, 4G; People v. Smyth, 28 Cal.
21; Carroll v. Siebcnthaier, 37 Cal. 193.
It is to be said of several, if not all, of the cases last cited,
that they present a materially different state of facts than we
iiave here to pass upon. For instance, the plaintiff in the
Andrews case was duly appointed and qualified city marshal,
and had long been in the actual possession of the olfice, when
he was wrongfully excluded therefrom by the action of the city
officers, after which he not only remained ready to perform, but
offered to perform, the duties to which he had been a|)pointcd;
and it was held that lie was entitled to recover his salary for
llie full term, although the marsh.al de facto had also been paid.
So, also, in the Memphis case, a person had been duly elected
hospital physician, had tala-n the oath, and his oflicial bond
had been accepted, and thereafter when calling upon his prede-
cessor to take possession of the office, the latter asked and was
granted a few hours' delay for the purpose of removing his
family from the building, and improved the opportunity thus
given to obtain a Avrit of injunction by means of whicli he kc})t
the rightful claimant out of possession for several montlis. As-
suming, for the present argument, that imder sucli exceptional
circumstances the city or county cannot avoid liability to the
rightful officer by paying the salary of the office to a flagrant
u^ur|K'r, we think a different rule may obtain where the olfieer
(if facto is in possession under a prima facie good title. In the
case before us the plaintiff never took possession of the olfice
till after ''"'* the final decision, June 21, 1901, nor had ever
tendered his oflicial bond or demanded possession of the office
until April 12, 1901, after the decision of his appeal to this
court. During all tliis period De Long Avas in the actual occu-
p;iiu'v of tlic office \inder the judgment of the court of contest
and of the district coui't. giving him an apparently good title
(subjfH't, of course, to the decision of the appeal). So far as
is shown, while all knew of the })endency of the appeal, De
Feb. 1904.] Brown v. Tama County. 301
Long and the board of supervisors and the disbursing officers
of the county acted in entire good faith, believing him the
rightful occupant of the office. Under such circumstances, is
there any sound principles of law or policy requiring the court
to compel the public, which had once in good faith paid the
full value of the services to the person who performed them,
to again pay the same debt, for the same services, to one who
confessedly did not perform them?
The opinion by Andrews, J., in the Dolan case (G8 jST. Y. 27-i,
23 Am. Eep. 168) is instructive on this point. Speaking of the
officer de facto who received the salarj' of the office before being
finally ousted, it says: "The appointment of Keating was not
a plain usurpation, without legal pretext or color of right. The
statute was obscure, and the power of the justice to remove an
incumbent at pleasure and make a new appointment was a
question upon which the courts differed, and, although it has
been finally decided that it did not exist, Keating was an offi-
cer de facto within the authorities.'^ After conceding that
the de facto officer had no right to the salary, and could not
have compelled payment to himself by suit, the opinion proceeds:
"But it does not follow from the conclusion that defendant
could have successfully defended an action brought by Keating
to recover the salary of assistant clerk that it was not jusiified
in treating him as an officer de jure when claiming it and pay-
ing it upon that assumption. It is clear that if the city could
rightfully pay the salary to Keating during his actual incum-
bency, and has paid it, it cannot be required to pay it again
to the plaintiff. We are of the opinion that payment to a de
facto public otllcer of the salary of the office, ''^^ made while
he is in possession, is a good defense to an action brought by
the de jure officer to recover the same salary after he has
acquired or regained possession It is plain that in many
cases the duty imposed upon the fiscal officers of tlie state,
counties, or cities to pay official salaries could not be safely
performed unless they are justified in acting upon the apparent
title of claimants. The certificate of boards of canvassers cer-
tifying the election of a person to an elective office is prima
facie evidence of the title of tlie person whose election is certi-
fied. But it often happens that, by reason of irregularities in
conducting the election, or the admission of disqualified voters,
the apparent title is overthrown, and another person is adjudged
to be rightfully entitled to the office. This can seldom, if ever,
be ascertained except after judicial inquiry If fiscal offi-
302 American State Keports, Vol. 101. [Iowa,
cers upon whom is imposed the duty to pay official salaries arc
only justified in paying them to the officer de jure, they must
act at the peril of being held accountable in case it turns out
that the de facto officer has not the true title; or, if they are
not made responsible, the department of the government they
represent is exposed to the danger of being compelled to pay
the salary the second time. It would be unreasonable, we think,
to require them, before making payment, to go behind the com-
mission, and investigate and ascertain the real right and title.
Disbursing officers charged with the payment of salaries have,
we think, the right to rely upon the apparent title and treat
the officer who is clothed with it as an officer de jure, without
inquiring whether another has a better right. Public policy
accords with this view This does not deprive the party
who has been wrongfully deprived of the office of a reinedy.
He may recover his damage for the wrong against the usurper.''
Entirely parallel in all material facts with the case at bar is
Commissioners v. Anderson, 20 Kan. 298, 27 Am. Kep. 171,
decided by the supreme court of Kansas. The contest there
was over the election to the office of county clerk. Anderson
received the certificate of election, and took possession of the
office. Tlie contest '^^*^ court decided for the contestant, Wild-
man, who then ousted Anderson. On final decision of the
appeal the judgment of the contest court was reversed and
Anderson's title to the office was sustained. Meanwhile, during
the pendency of the appeal, Wildman held possession of the
office, and drew the salary accruing from time to time. After
being restored to the office, Anderson brought suit to compel
payment to himself of the salary during the time he was out
of possession. The court, by Valentine, J., in holding there
was no right of recovery, says: "Now, as "Wildman was an offi-
cer de facto, holding under color of title, every person had a
right to recognize him as a legal and valid officer and treat him
a? sTicli. The public, the county, and private individuals had
a riglit io do business with him as an officer, and to pay him
for his services, if they chose, without taking any risk of having
to pay for such service a second time It is not their fault
lliat ho is wr(in:_'-fullv in possession of the office, and how are
tliev to know wliother he is in possession of the office rightfully
or wrongfully?"'
In -Vuditors v. Eonoit. 20 Alich. 176. 4 Am. Eep. 382. another
ca^e of similar cbararifr. the ^[ichigan court, after a very
thorougli examination of the question both upon principle and
Feb. 1904.] Beown v, Tama County. 303
precedent, reach the same conclusion. In still another parallel
case— State v. Milne, 36 Xeb. 301, 38 Am. St. Kep. 724, 54
X. W. 521, 19 L. R. A. 689 — the authorities are again mar-
shaled with the same result, the court saying: "The doctrine
that the acts of a de facto officer are valid, as far as they affect
third parties and the public, is so familiar that no citation of
authorities is necessary to show it. The acts of such officer
are sustained upon the ground that to question them would
devolve upon any person transacting business with the officer
the duty of determining at his peril the right of the incumbent to
the office he holds. Third parties assume no such risk. They
are not bound to know that the person exercising the functions
of a public office under color of authority is rightfully in pos-
session of the office, but are warranted in ''**•* recognizing him
as the legal and valid officer, and are justified in dealing with
him as such. If a person pays to a de facto officer fees allowed
by law for his services, he is protected, and will not be required
to pay them a second time to the officer de jure. We think the
same principle should govern cases like the one at bar. Cash-
man was the de facto county treasurer of Greely county, and
performed the duties of the office under color of title from Jan-
uary 9, 1900, to October 28, 1901, during which time he re-
ceived all tlie emoluments which attached to the office. He took
possession of the office in good faith by virtue of the decision in
]iis favor by the contest court, and continued to occupy the
office until the respondent was declared to be entitled to the
same by virtue of a judgment of ouster obtained by him against
Cashman on the final determination of the contest case. The
county board, in settling with Cashman, and allowing him the
fees and salary provided by law for the period during which
he performed the duties of the office, the same having been
made before respondent came into possession, had a right to
rely upon the apparent title of Cashman, and to treat him as
an officer de jure. The board was justified in allowing him tlie
emoluments of the office upon that assumption, and the county
cannot be compelled to pay them twice." Bearing in the same
direction, also, are Shaw v. County of Prima, 2 Ariz. 399, 18
Pac. 273; Gorman v. Boise County, 1 Idaho, 655; Parker v.
Dakota, 4 :Minn. 59 (Gil. 30) ; Michel v. Xew Orleans. 32 La.
Ann. 1094; McAffce v. Russell, 29 Miss. 84; Chandler v. Hughes
Co., 9 S. Dak. 24, 67 X. W. 946.
It is not to be denied that this rule may sometimes result in
hardship to one who has been wrongfully excluded from an
304 Ameiucax State TiEroRTs, Vol. 101. [Iowa,
office to which he has been duly elected or appointed, but the
hardship comes not from any wrong which has been done him
by the state, county, or city whose officer he is, but from the
Avrong or fault of the individual who, without suflticient grounds,
has disputed his right and taken the emoluments which right-
fully he should have received. The public is interested in hav-
ing tlie offices provided by law filled at all times by persons to
whose official acts full faith and credit ''^^ may be given. In-
dividual citizens and other officers having business with any
given office should be and are protected in dealing with the
person actually and notoriously in possession of the same under
color of title, and peaceably exercising its functions. Even
though it be well known that a contest is pending, the de facto
officer may go on discharging the duties of the office, and third
])ersons and the public may deal with him as the officer de jure.
They are not required to enter into the contest, nor to feel that
the validity of the officers acts in the performance of the duties
of the office hangs in suspense upon the outcome of the contest.
If tlie compensation of the olTice be one like tliat of the ollice
of justice of tlie ]icace or constable, to which no salary is- at-
taclied, but consists wholly of items of fees and costs earned
and collected from day to day, the person who is liable therefor
may pay them to the officer who performs the service, without
fear of being re(]uired to pay them again to a successful con-
testant who afterward establishes his right to sucli office. This
pr(»position we presume no one will dispute; and it is dillicult to
conceive why a different principle should be a])pliod to a case
where the de facto oificer receives his com}K'nsation by way of
a per diem allowance out of tlie public treasury. Xeither the
county which pays the officer's cliarges from its puldic treasury,
nor tlie },)rivate citizen who pays the officer's fees fi-om his ])ri-
vate ])urse. is a })arty to the contest, and neither is bound to
anticipate the outcome, or to deal with the do facto ollicor at
its [leril. Tlie litigation is the ])rivate and individual concern
of the parties thereto, and not until they have fought their con-
test to a finisli and a iinal adjudication is had, and tlie rightful
claimant is in position to assume tlie actual occupancy of his
oiVice, need tlie citizen or county refuse to treat with tlie de
facto incundjcnt as if lie were an oHlcer de jure. Any other
rule would tend to uncertainty, confusion, and endless litigation
in the conduct of ])'ililic affairs. The party to whom such a con-
test brings undo-crvcd injury or loss must look for his damages
to the person wlio cau.-ed it.
Feb. 1904.] Brown v. Tama County. 305
756 -^Yg ^Q jjQ^ attempt any general review of these cases. As
indicated at the outset, they are not to be harmonized; and
believing, as we do, that the rule, which is conceded even by
its critics to be sustained by a preponderance of authority, is
also consonant with sound reasoning and with public policy,
we adopt and apply it. That rule is not inconsistent with any
previous decision of this court. The case of McCue v. Wapello,
56 Iowa, 698, 41 Am. Eep. 134, 10 N. W. 248, cited by appel-
lant, is no exception to this statement. The action there was
brought by one who had been an officer de facto, but had been
ousted, to recover for services rendered while serving in such
de facto capacity. A recovery under such circumstances would
be, we think, wholly without precedent. The ISTew York court,
in the Dolan case, recognizes this principle, and, while holding
that the officer de jure cannot, after obtaining possession of his
office, compel payment to himself of a salary which has once
been paid to the officer de facto while actually in possession,
distinctly affirms the rule of the McCue case, that an officer
cannot compel the payment of the salary to himself without
showing good title to the office, and that all salary and charges
for official services by said officer accruing during the de facto
incumbency, and remaining unpaid when the wrongful occupant
is finally ousted, are payable only to the officer de jure. The
rule, to which we adhere, is not to be invoked by the de facto
officer for his own advantage, as McCue sought to do in the
case referred to. As the court there says : ''Tliese doctrines
operate only for the protection of the public. They cannot be
invoked to give him the emoluments of the office as against the
officer de jure." In the McCue case plaintiff had, while still
in possession of the office, received payment from the county in
a considerable sum for official services, and had Stewart, the
officer do jure, brought suit after his restoration to compel the
county to pay this sum a second time, then we should have a
case in point with the one at bar. The distinction is in our
judgment a proper one, and the principle of the earlier case
can well be adhered to without in any manner calling for a
reversal in the case before us.
''^'^ We have also held that the right to recover the compen-
sation or salary attached to an office "depends upon the per-
formance of the duties, or, at least, there must be possession of
the office in fact, as distinguished from the mere right of pos-
session": Jayiie v. Drorbaugh, 63 Io\,-a, 717, 17 N. w. 436.
The county is something more than a mere stakeholder between
Am. St. Rep. Vol. 101—20
306 American State Reports, Vol. 101. [Iowa,
the contending parties, and its rights in the premises are not
necessarily dependent upon the adjudication between the con-
tending claimants. It is to the public interest that it shall be
permitted to recognize officers de facto in possession of their
offices under color of right, and until a final adjudication in
favor of a contestant it may treat the occupants as officers de
jure, by an action in their own behalf, could not compel such
recognition. In the language of Campbell, C. J., in Auditors
Y. Benoit, 20 Mich. 176, 4 Am. Rep. 383: "Nothing but actual
incumbency can make a legal officer, however much he may be
entitled to obtain the office The only valid proceedings
in the name of the office must be those of the actual incuuibeut."
If the public generally are entitled to deal with the incumbent
(even pending contest) without fear that such dealings will
be invalidated by a subsequent adjudication of the right to the
office in favor of a contestant, it is equally proper and impor-
tant that the organized public — state, county, or city — may also
deal with him with equal safety. As said by Chief Justice
Campbell in the case above cited: "There may be cases where
the redress of the aggrieved party will be difficult. But the
public convenience is not on that account to be sacrificed. It
is important to have the right man in office, but it is more
important to deal safely with those who are actually in place.
And there would be a great hardsliip in allowing public inter-
ests to be thrown into confusion whenever a contest arises for
office. It would invite rather than prevent litigation if every
claimant understood that by setting up a claim to an office
he could stop the salary of the incumbent."
The conclusion thus reached renders unnecessary the consid-
eration of other questions presented in argument.
The judgment of the district court is affirmed.
Tlie Prinripal Cnf<r seems to have the support of the weicrht of
authority. Thero are dofisions however, wherein a ciifTerent view is
taken: See Conghlin v. MeElrov, 74 Conn. ?,97, 50 Atl. 1025, 92 Am.
St. Rep. 224, and rases cited in the eross-reference note thereto; note
to Andrews v. Porthmd, 10 Am. St. Eep. 284.
Feb. 1904.J State v. Poe. 307
STATE V. POE.
[123 Iowa, 118, 98 N. W. 587.]
B06BEBY — Indictment — Aggravation. — If an indictment for
robbery states the essential facts of the crime, it is not necessary
that it further allege circumstances of aggravation in order to war-
rant the imposition of a penalty provided by statute for the com-
mission of a robbery under aggravated circumstances, (pp. 308, 309.)
EVIDENCE OF GUILT. — Flight is not Presumptive Evidence,
but is only a circumstance to be considered in connection with the
other evidence in arriving at the guilt or innocence of the accused,
(pp. 312, 313.)
Stiver & Slaymaker and J. S. Banker, for the appellant.
C. W. Mullan, attorney general, for the state.
^1* McCLAIN, J. The indictment charged that defendants
made an assault upon one Charles Billington and put him in
bodily fear and danger of his life, and that said defendants,
being then and there armed with revolver and knife, the same
being dangerous weapons, feloniously and unlawfully did rob,
steal, and carry away from the person of said Billington, against
his will, certain property described. The court charged the
jury that if it found the defendants, or either of them, was
armed with ^^^ a revolver and knife, or either of such weapons,
with intent, if resisted, to kill or maim the said Charles Billing-
ton, or if the defendants, or either of them, being so armed,
struck or wounded the said Charles Billington, then the defend-
ants, or either of them, so found guilty, might be punished as
specified in Code, section 4754, which provides that "if such
offender at the time of such robbery is armed with a dangerous
weapon with intent, if resisted, to kill or maim the person robbed,
or if being so armed, he wound or strike the person robbed,"
he may be punished by a term of imprisonment in the peniten-
tiary not exceeding twenty years nor less than ten years.
This instruction is objected to on the ground that the indict-
ment does not charge the aggravated degree of tlie offense de-
scribed in the section of the code above referred to, and it is
contended that it was error to submit to the jury the question
whether defendants were armed with intent, etc., or did, being
so armed, wound or strike the person robbed. But it is to be
noticed that the statute does not describe different offenses in
tlie nature of robbery. In Code, section 4753, the crime is fully
described, without reference to the circumstances of being armed.
308 American State Reports, Vol. 101, [Iowa,
etc., while the two following sections prescribed punishments,
depending on the presence or absence of the aggravating cir-
cumstances under which the crime is shown to have been com-
mitted. Therefore it was not necessary in the indictment to
charge the circumstances of aggravation, which affect only the
measure of punishment that may bo inflicted. This conclusion
has been readied in Massachusetts, where the statutory pro-
visions are very similar to those found in our code: Common-
wealth V. Mowry, 11 Allen, 20; Commonwealth v. Cody, 165
Ma^. 133, 42 N. E. 575.
Although this court may not have expressly passed on the
question, yet in State v. Brewer, 53 Iowa, 735, 6 X. W. 62, it
approved an indictment similar to the one now before us, while
in State v. Callihan, 96 Iowa, 304, C5 N". W. 150, and in State v.
Osborne, 96 Iowa, 281, 65 N. W. 159, it treated an indictment
charging the essential ^^* facts of robbery, and also an assault
with intent to kill, as not describing more than one offense, and
deemed the peculiarities of the assault as unnecessary and sur-
plusage. We think it not required that an indictment which
states the essential facts of tlie crime of robber^' shall further
state the circumstances of aggravation, in order to warrant the
imposiiion of tbe penalty provided for in Code, section 4754.
In one paragraph of the charge, the jury was instructed as
follows: "It is claimed by the state that the defendants Decker
and Foe at once fled, and endeavored to escape arrest by such
fliglit. If you find said defendants at once after the alleged
offense fled to Missouri, and endeavored to avoid arrest and
prosecution by such flight, such fact would 1)0 presumptive evi-
dence of guilt; and if such fact is explained, the jury would
be justified in considering such flight as evidence of guilt."
Tbe objection urged to this instruction is tbat tbe jury may have
reasonablv understood it as authorizing them to give undue
weigbt to the fact of flight, and to convict on proof of that fact
alone.
Tbe fact tbat defendant fled from the vicinity where the
crim(> was couunitted, having knowledge that he was likely to
l>e arretted for the crime, or charged with its commission, or
susp(H'ted of guilt in connection therewith, may ilx? shown as a
circuiiisiance tending to indicate guilt, and may be considered
hv the jury with otber circumstances tending to connect the
defendant with the commission of the crime, to authorize the
inference of the guilt of defendant, the corpus delicti being
proven. To this proposition there is general assent among the
Feb. 1904.] State v. Poe. 309
authorities, and it is well settled that evidence of flight is ad-
missible: 1 Bishop's New Criminal Procedure, sec. 1250; Ab-
bott's Trial Brief, 458. The admissibility of such evidence de-
pends upon the assumption — which is in accordance with usual
human experience — that a guilty person will, and an innocent
person will not, attempt to avoid an investigation of a charge
of crime; and yet it is well *^^ recognized as a fact that guilty
persons do not universally attempt to escape; for, recognizing
the danger of such attempt, or relying on the inability of the
prosecution to connect them with the crime charged, they may
well think it to be to their advantage to defy suspicions or accu-
sations; while, on the other hand, innocent persons, through
mere timidity, or by reason of a fear that they may not be able
to meet apparent evidence of guilt, may seek to elude arrest for
the purpose of escaping or postponing investigation until the
excitement has subsided, or facts establishing their innocence
may have developed. It is therefore usual and proper, not only
to instruct the jury that they may consider evidence of flight
with other circumstances tending to show defendant's guilt,
but also to advise them as to the weight wliich should be given
to such evidence: Commonwealth v. Berchine, 168 Pa. St. 603,
32 Atl. 109; P^lmore v. State, 98 Ala. 12, 13 South. 427; Sewell
V. State, 76 Ga. 836.
In State v. Thomas, 58 Kan. 805, 51 Pac. 228, the court
approved an instruction that flight of defendant is "a circum-
stance to be considered, in connection with all the other evi-
dence, to aid you in determining the question of his guilt or
innocence." The weight of such circumstances is frequently
greatly modified by tlie conditions shown to have existed as
bearing upon tlie conduct of the defendant; and under such cir-
cumstances, such as that the defendant was of immature years
or thought himself to be in danger of violence, such evidence
is of very little probative force: Mathews v. State, 19 Xeb. 330,
27 N. W. 234; Eyan v. People, 79 N. Y. 593.
In the case last cited the court says: "The evidence that the
defendants made an effort to keep out of the way of the officer
was very slight, if any, indication of guilt. There are so many
reasons for such conduct, consistent with innocence, that it
scarcely comes up to the standard of evidence tending to estab-
lish guilt; but this and similar evidence has been allowed
*^^ upon the theory that the jury will give it such weight as
it deserves, depending upon the surrounding circumstances."
And in Scheffield v. State, 43 Tex. 378, this language is used:
SIO American State Reports^ Vol. 101. [Iowa,
*'It was a maxim of the ancient common law tliat flight from
justice was equivalent to guilt. This effect is not now given to
flight in the modern law of evidence. Numerous examples are
to be found in which some other motive can be assigned than
that of guilt, and which form exceptions to the general rule,
and require consideration by the jury in coming to a conclusion
as to the real motive for flight.-'^ It is clear that the circum-
stance of flight alone will not justify conviction -of the defend-
ant, in the absence of other evidence tending to connect him
with the commission of the crime, although the corpus delicti
may have been sufficiently shown : Elmore v. State, 98 Ala. 12,
13 South. 427 ; Sylvester v. State, 71 Ala. 17.
Indeed, it has been held that the court should not say to the
jury, in such cases, that flight is evidence of guilt, but, rather,
that it is only evidence tending to prove guilt, and accordingly
it is said that the court should not instruct the jury that if
flight is proved it must be satisfactorily explained, consistently
with the innocence of the defendant: Fox v. People, 95 111. 71.
The last sentence of the instruction above quoted is open to
criticism, therefore, in that it might have been reasonably in-
terpreted by the jury as authorizing them to convict the defend-
ant of the crime charged, without other evidence of defendant's
guilt than that he had, soon after the commission of the crime,
and with knowledge that he was suspected thereof, fled from
the vicinity where the crime was committed. The insti-uction
does not incorporate the thought that such circumstance might
be explained, but it leaves the jury to infer that, if unexplained,
it is sullicient evidence to warrant them in finding that de-
fendant was guilty of the crime. Even if unexplained, such
conduct is not, as already pointed out, incoiisistcnt with in-
nocence, but merely a circumstance ^^^ from which, with other
circumstances, the inference of guilt may l)e dravni. This
t^entenco cannot, perliaps, be said to be in itself erroneous as
stating a proposition of law; but as the instruction, as quoted,
em])0(]i(>s all that was said to the jury on the subject, and in
view of the ef(uivocal nature of the evidence relating to the
flight, as it will ])e hereafter more fully referred to, we think
that it was calculated to mislead the jury as to the effect which
might be given to such evidence.
But we til ink that the second sentence of the instruction,
declaring that flight, if to avoid an-est and prosecution, would
be presumptive evidence of guilt, was erroneous and prejudicial.
It is sometimes said, for the purpose of explaining why evidence
Feb. 1904.] State v. Poe. 311
of flight is admissible at all, and not for the purpose of determin-
ing what weight the jury should give to such evidence, that a
presumption of guilt arises therefrom. Dr. Wharton, in an ar-
ticle on Presumptions in Criminal Cases (1 Criminal Law
Magazine, 10), uses this language: "All evidence, therefore,
we conclude, consists of reason and fact co-operating as co-or-
dinate factors. The facts are presented to us either by inspec-
tion, or by what we call judicial notice, or by our knowledge of
everyday life, such as is embraced by the term 'notoriety,' or
by the descriptive narrative of witnesses. From these facts we
draw certain conclusions. The mode by which we draw them
is induction, and the processes we term 'presumption.' In
other words, a presumption is an inference of a fact from a fact.
Of this we may take the following illustration : A man accused
of crime hides himself and then absconds. From this fact of
absconding we infer the fact of guilt. This is a presumption
of fact, or an argument of a fact from a fact." But in his
work on Criminal Evidence (section 750), this author explains
the whole matter in language so pertinent to all the phases of
this case that we venture to quote him at length : "^Mien a
suspected person attempts to escape or evade a threatened prose-
cution, it may be urged that he does ^^* so from a conscious-
ness of guilt; and though this inference is by no means strong
enough l)y itself to warrant a conviction, yet it may become one
of a series of circumstances from which guilt may be inferred.
Hence it is admissible for the prosecution to show that the
prisoner advised an accomplice to break jail and escape, or that
he offered to hribe one of his guards, or that he killed an officer
of justice when making such attempt, or tbat he attempted to
bribe or intimidate witnesses. So with flight, to which no
proper motive can be assigned, and with acts of disguise, con-
cealment of person, family, or goods, and similar ex post facto
indications of a desire to evade prosecution. But it must be
remembered tluit, while tliese acts are indicative of fear, they
may spring from causes very different from that of conscious
guilt. 'Many m.en are naturally of weak nerve, and, under
certain circumstances, the most innocent person may deem a trial
too great a risk to encounter. He may be aware that a number
of suspicious, though inconclusive, facts will be adduced in evi-
dence against him; he may feel his inability to procure legal
advice to conduct his defense, or to 'bring witnesses from a
distance to establish it ; he may be assured tliat powerful or
wealthy individuals have resolved on his ruin, or that witnesses
313 American State Reports, Vol. 101. [Iowa,
have been suborned to bear false testimony against him ; added
to all this, more or less vexation must necessarily be experienced
by all who are made the subject of criminal charges, which vexa-
tion it may have been the object of the party to elude by con-
cealment, with the intention of surrendering himself into the
hands of justice when the time for trial should arrive' : Best on
Evidence, 5th ed., 578. The question, it cannot be too often
repeated, is simply one of inductive, probable reasoning from
certain established facts. All the courts can do, when such
inferences are invoked, is to say that escape, disguise, and simi-
lar acts aiford, in connection with other proof, the basis from
which guilt may be inferred; but this should be qualified by a
general statement of the countervailing considerations inci-
dental to a comprehensive ^^^ view of the question. To this
effect is the charge of Abbott, J., in Donnall's Case, where he
told the jury, that 'a person, however conscious of innocence,
might not liave the courage to stand a trial; but niiglit, al-
though innocent, think it necessary to consult his safety by
flight.' So it is proper to kcop in mind, as we have seen, tlie
character of the tribunal ])cfore whom, and the mode of criminal
procedure in the country where, the trial is to take place.
Hence is it that conduct exhibiting indications of guilt should
not be received by the court, unless there be satisfactory
evidence that a crime has been committed. And in all cases tlie
circumstances explaining or excusing fliglit are to be taken into
consideration."
In the same sense Best, in his work on Evidence, refers to
tlie etrect of sucli evidence (Chamberlaine's edition of 1893) :
"The evasion of justice seems now nearly, if not altogether, re-
duced to its true pLaee in the administration of criminal law;
namely, that of a circumstance, a fact which it is always of im-
portance to take into consideration, and which, combined with
others, may supply the most satisfactory proof of guilt, although,
like any other j)i(xe of presumptive evidence, it is equally ab-
surd and dangerous to invest with infallibility."
Judge Tlion)j)son, in his work on Trials (volume 2, section
•^■■343), explains the matter thus: 'Tt is often inaccurately said
that the flight of tlie accused creates a presumption of his guilt,
and this presumpiion is sometimes inadvertently dealt with as
though it were a ])resujiiption of law. Ikit it belongs to that
class of presumptions which are generally classified as 'presump-
tions of fact.' If it were a presumption of law, the jury would
Feb. 1904.] State v. Poe. 313
be bound to draw it in every case of flight, and the courb might
so instruct them; whereas it is merely a circumstance tending
to increase the probability of the defendant being the guilty per-
son, which, on sound principle, is to be weighed by the jury
like any other evidentiary circumstance. In cases where the
evidence renders it ^^^ proper, the judge is at liberty to give
tbe jury advice touching the nature of this presumption. The
following, approved in a recent case, will, with some correction
of phraseolog}% be a good model : 'The flight of a person im-
mediately after the commission of a crime, or after a crime is
committed with which he is charged, is a circumstance in estab-
lishing his guilt, not sufficient of itself to establish his guilt,
but a circumstance which the jury may consider in determin-
ing the probabilities for or against him — the probability of his
guilt or innocence. The weight to which that circumstance is
entitled is a matter for the jury to determine, in connection
with all the facts called out in the case' : McClain v. State, 18
Xeb, 154, 158, 24 N. W. 720. The following, from another re-
cent case, is more concise, and perhaps better: 'Evidence has
been introduced as to an attempted escape from jail, by tbe de-
fendant, while in tbe custody of the sheriff of this county on
tins charge. If you find from the evidence that defendant did
thus attempt to escape from custody, this is a circumstance to
1)0 considered by you, in connection with all the other evidence,
to aid you in determining the question of his guilt or innocence.'
Approved in Anderson v. State, 104 Ind. 467, 472, 4 N. E.
63, 5 iST. E. 711." He then refers to tlie peculiar form of in-
struction wliich has been approved in Missouri, and to which we
will hereafter revert. In Murrell v. State, 46 Ala. 89, 7 Am.
Rep. 592, tlie court, reviewing tlie acticm of the trial court in
admitting evidence of escape pending trial, speaks of fliglit as
one of the most common grounds for a presumption of guilt.
But in respect to all tliose references to evidence of flight as
raising a presumption of guilt, it is to be observed that it is one
thing to say, in giving a legal reason for the admissibility of
evidence of flight, that guilt may be presumed therefrom, and
quite another thing to tell the jury that a presumption of guilt
arises from such evidence. To prevent sucli an instruction be-
ing misleading, it would be necessary to go into ^^^ refined
legal distinctions as to presumptions of fact, presumptions of
law, and mixed prcsum])tions of fact and law, wliich are intel-
ligible, if at all, only to a mind trained in legal conceptions and
the use of technical langua^rc.
31-i American State Reports, Vol. 101. [Iowa,
Tlie error involved in directing the jury that evidence of
flight gives rise to a presumption of guilt is clearly pointed
out in the cases on the subject. In People v. Wong Ah Ngow,
54 Cal. 151, 35 Am. Rep. 69, such an instruction is condemned.
In Hickory v. United States, 160 U. S. 408, 16 Sup. Ct. Rep.
327, 40 L. ed. 474, tlie subject is fully considered, and an in-
struction is condemned which is characterized as "tantamount
to saying to the jury that flight created a legal presumption of
guilt so strong and so conclusive that it was the duty of the
jury to act on it as an axiomatic truth," and the court continues
as follows: "In this charge, also, it is true, the charge thus
given was apparently afterward qualified by the statement that
the jury had a right to take the fact of fliglit into consideration,
but these words did not correct the illegal charge already given.
Indeed, taking the instruction that llight created a legal pre-
sumption of guilt, with the qualifying words subsequently used,
they were ])oth equivalent to saying to the jury that they were,
in considering the facts, to give them the weight which, as a
matter of law, the court declared they were entitled to have;
that is, as creating a legal presumption so well settled as to
amount, virtually, to a conclusive proof of guilt." In Alberty
V. United States"^, 162 U. S. 499, 16 Sup. Ct. Rep. 864, 40 L.
ed. 1051, the court approves what was said in the case from
wbich we liave just quoted, and, with reference to a similar
charge, says: "The criticism to be made on tliis charge is tliat
it lays too mucli stress upon the fact of flight, and allows the
jury to infer that this fact alone is sufficient to create a pre-
sumption of guilt. It certainly would not be contended, as a
universal rule, that the fact that a person who cliances to be
present on the scene of a murder shortly thereafter left the city
would, in the absence ^^^ of other testimony, be sufficient in
itself to justify his conviction of the murder."
The only cases which we have been able to find sanctioning
instructions to the jury that flight is presumptive evidence of
guilt are those in IMissouri, as to which Judge Thompson says
(2 Thompson on Trials, section 2543, supra) : "Often in IMis-
souri, where the English idea concerning presumptions in crim-
inal cases generally prevails, the following form of instruction
upon this subject is used — ending, it is perceived, in submitting
the fact as a circumstance to the consideration of the jury: 'Tlie
court instnicts tbe jury that flight raises the presumption of
guilt, and if you believe from the e\ndence that the defendant,
after having shot and killed Minnick, as charged in the indict-
Feb. 1904.], Staje v. Poe. 315
ment, fled the country and tried to avoid arrest and trial, you
may take that fact into consideration in determining his guilt
or innocence/ " Such an instruction is sanctioned by the fol-
lowing among many cases in that state: State v. Walker, 98
Mo. 95, 9 S. W. 646; State v. Ma Foo, 110 Mo. 7, 33 Am. St.
Eep. 414, 19 S. W. 222; State v. Hunt, 141 Mo. 626-633, 43
S. W. 389. The rule in Missouri seems to be peculiar, and we
are not inclined to follow it.
On principle and authority, the instruction as to the presump-
tion to be drawn from proof of flight is erroneous, and should
not be sustained, unless it is so far sanctioned in the cases in
our own state that we are precluded from following the dictates
of reason as illustrated by the weight of authority. In State
V. Eodman, 62 Iowa, 456, 17 X. W. 663, and State v. Fitzgerald,
63 Iowa, 268, 19 N. W. 202, we approved instructions to the
effect that evidence of flight, or attempt to escape, should be
considered as tending to establish guilt. In State v. Schaffer,
70 Iowa, 371, 30 :NT. W. 639, and State v. Stevens, 67 Iowa, 557,
25 X. W. 777, we held that evidence of flight was properly in-
troduced, and that the fact of flight was material. In State v.
Seymour, 94 Iowa, 699, 63 N", W. 661, an instruction was ap-
proved which told the jury *^^ that if they found from tlie
evidence that defendant, upon being informed that he was sus-
pected of or charged with crime, "fled to avoid arrest, and re-
mained away, going under an assumed name, such fact is a
circumstance which prima facie is indicative of guilt." In
State v. James, 45 Iowa, 412, a similar instruction is quoted,
but without discussion of its correctness as a proposition of law,
the only question considered being as to whether there was suf-
ficient evidence of flight to warrant the submission of the ques-
tion to the jury. In State v. Arthur, 23 Iowa, 430, an in-
struction is condemned which told the jury that a mere attempt
to escape raised in law a strong presumption of guilt. In the
last-cited case the court says: "That an unexplained attempt to
escape is a circumstance against a party accused of crime is
undoubtedly true, and as such it may be proven to and con-
sidered by the jury. But at most it only raises a presump-
tion— a presumption ordinarily inconclusive rather than strong,
and one which is variable in force, dependent upon the cir-
cumstances surrounding the prisoner The true course is
to allow the fact of evading or attempting to evade justice to be
proved to the jury as a circumstance wliich prima facie is in-
dicative of guilt." But these authorities are far from sufficient
316 American State Eeports, Vol. 101. [Iowa,
to justify the instruction given in this case. To say that flight
is a circumstance prima facie indicative of guilt is a very dif-
ferent thing than saying that "such fact would he presumptive
evidence of guilt." «
Although the term "presumptive evidence of guilt," as ap-
plied to a certain state of facts, may, perhaps, sometimes in-
dicate no more than that the facts referred to may be consid-
ered by the jury as evidence from which guilt may he inferred
as a matter of fact, and not as a matter of law, yet it is al-
ways unwise, in giving the jury instructions as to the evidence,
to say that from any particular fact a presumption of guilt
arises. The question of guilt is one to be determined 1 y tlie
jury on all the facts. In State v. Brady, 121 Iowa, ^^^ 561,
97 N. W. 62, the court, referring to an instruction as to evidence
of recent possession in a prosecution for burglar}-, says : "The
law docs not attach a 'presumption of guilt' to any given cir-
cumstances, nor does it require the accused to 'overcome the pre-
sumption thereby raised' in order to be entitled to an acquittal.
What the law does say is that the fact of possession is evidence
of guilt upon which a conviction may properly be returned, un-
less the other facts or circumstances developed he such that, not-
withstanding the recent possession, the jury still entertains a
reasonable dou])t of the defendant's participation in the crime.
It is in this sense the words 'presumption' and 'prima facie evi-
dence' must be understood when employed in this connection."
It is evident that the presumption arising from tlie recent un-
exphiined possession of stolen property, that tlie person tlnis
found in possession is guilty of larceny or Ijurglarv, as the case
may be, is entitled to greater weight than the presumption of
guilt from fliglit.
The jirojudicial and misleading character of the instruction
given in this case is manifest when it is considered in connec-
tion with the evidence which we find in the record. So far as
appears, the only evidence of flight was that one of the defend-
ants, who was still in the neigh])orhood where the crime was
coiniiiilted, two days after the commission of the crime, said
that he was charged with having killed and robbed a man, and
that ••they were after him for it," and he would get away if he
could; that some time afterward — how long does not appear —
lie was in a town in an adjoining county, and that two months
afterward all the defendants were under arrest for this crime in
^fissouri. Defendants were roving characters, going from place
to place and getting work of a temporary nature, and there was
Feb. 1904.] State v. Poe. 317
no reason disclosed why it should be expected that they would
remain in the place where they were boarding, near the scene of
the robbery, as they had no permanent employment at that place.
Now, for the court to say that if it was proven that these
*^^ two defendants, soon after the commission of this crime,
left the place where they had been staying as boarders, and two
months afterward were found in Missouri, they might be con-
victed of tbe crime charged, without any further evidence what-
ever of their connection with the offense, was manifestly erro-
neous ; and this is exactly what the jury were told. As a matter
of fact, there was other evidence of their guilt, although the
testimony of the witnesses was conflicting; but the jury would
have been warranted under this instruction in finding them
guilty on the eyidence of flight alone, ambiguous as it was, al-
though the jury did not believe that the other evidence even
tended to connect them ^ath the crime.
For error in giving the instruction above referred to, a nev/
trial must be ordered.
Eeversed.
Mr. Chief Justice Deemer Dissented and after quoting the instruc-
tion in question, said that: "The use of the word * presumptive' is
said to be fatal to the instruction. I do not think so. It is agreed
that flight is evidence of guilt, but the majority say that it is not
presumptive evidence. If it is not I should hardly know what quali-
fying term to use in order to express the thought. What docs this
adjective mean? The iCentury Dictionary says: 'Based on a proba-
bility; probable; grounded on probable evidence; proving ciream-
stantially, not directly.' Is flight, then, evidence based upon pre-
sumption or probability ? Does it tend circumstantially to prove
guilt? The authorities cited by the majority answer these questions
in the affirmative as I understand them. What is a presumption of
fact in criminal jurisprudence? Wharton, in his work on Criminal
Evidence, says: 'It is a logical argument from a fact to a fact. It
is an argument which infers a fact otherwise doubtful, from a fact
which is proved': Wharton on Criminal Evidence, 9th ed., sec.
707. Lawson says: 'It is an act of reasoning and much of human
knowledge on all subjects is derived from that source': Lawson on
Presumptive Evidence, 2d ed., 640. Bouvier says: 'It is an inference
drawn by a process of probable reasoning, from some one or more
matters of fact.' See, also, Best on Presumptions, sec. 12, and also
State V. Mecum, 95 Iowa, 433, 64 N. W. 28«. It is of course a
disputable presumption, and one to be drawn generally by the jury.
The question then is, Does an inference of guilt arise from evi-
dence of flight under the facts assumed in the instructions? I think
318 American State Reports, Vol. 101. [Iowa,
that the authorities are practically agreed on the proposition. It
will be noticed that the court doea not indicate in any manner how
strong that inference is; the instruction leaves the whole matter
to the jury, simply saying that evidence of flight, if unexplained,
may be considered by them as evidence of guilt. After all, the
whole matter is left to the jury. If a jury is not justified in con-
sidering unexplained flight, under the circumstances pointed out in
the instruction as evidence of guilt, then such evidence is inad-
missible for any purpose. This is all the instruction warrants it
in doing; and, if it does not announce the law, then I have read
the books to no purpose. There is nothing in the instruction which,
even inferentially, asserts that the jury might convict on evidence
of flight alone. The court characterizes it as a certain kind of
evidence, and then says that the jury may consider it as evidence
of guilt, that is to say, as evidence tending to show guilt. Its
characterization of the evidence as 'presumptive' rather than 'di-
rect' has support in all the authorities. It is of the same character
as possession of property recently stolen; or identity of names in
identifying persons; or the presumption that one intends the natural
and probable consequences of his acts, or that he intended to do
that which he did; or the inference of guilt from the fabrication
or falsification of testimony; or the presumption against suicide due
to love of life; or the presumption of sanity — each and all are
presumptions of more or less weight All the authorities, so
far as I have been able to examine them, hold that flight, or the es-
cape of an accused person after the commission of a crime, is a
circumstance tending to show guilt — that is, is presumptive evidence
of guilt — and that a jury may consider such conduct as evidence
of guilt: See cases cited by the majority," and Murrell v. State,
46 Ala. 89, 7 Am. Eep. 592; People v. Wong Ah Ngow, 54 Cal. 151,
35 Am. Eep. 69; Plummer v. Commonwealth, 1 Bush, 76; Porter v.
State, 2 Ind. 435; State v. Arthur, 23 Iowa, 430; State v. James,
45 Iowa, 412; State v. Boyer, 79 Iowa, 330, 44 N. W. 55S; State v.
Seymour, 94 Iowa, 699, 63 N. W. 661; People v. Pitcher, 15 Mich.
397; Fanning v. State, 14 Mo. 386; Dean v. Commonwealth, 4 Gratt.
541.
"The rule in Alabama is well stated in Murrell v. State, 46 Ala.
89, 7 Am. Eep. 592, wherein it is said: 'Flight, in a criminal prose-
cution, is one of the most common grounds for a presumption of
guilt Flight is universally admitted as evidence of the guilt
of tlie accused, although it is not conclusive.'
"Tlie instruction has support in the following authorities, in ad-
dition to those already cited: State v. Hunt, 141 Mo. 633, 43 S. W.
3S9; State v. Ma Foo, 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222;
State V. Brooks, 92 Mo. 542, 5 S. W. 257, 330; StaLe v. Walker, 98
Mo. 95, 9 S. W. 651, 11 S. W. 1133."
March, 1904.] Amekican Trading etc. Co. v. Gottstein. 319
Flight of the Accused as evidence of his guilt is considered in Lewis
V. State, 96 Ala. 6, 38 Am, St. Kep. 75, 11 South. 259; State v. Dun-
can, 7 Wash. 336, 38 Am. St. Rep. 888-, 35 Pac. 117; State v. Foster,
130 N. C. 666, 89 Am. St. Rep. 876, 41 S. E. 284. In State v. Ma
Foo, 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222, it is held that
a presumption of guilt arises where he flees to avoid arrest. Flight
of the accused itself, however, is held not to authorize the jury to
presume guilt iu Smith v. State, 106 Ga. 673, 71 Am. St. Rep. 286,
32 S. E. 851.
AMERICAN" TRADING AND STORAGE COMPANY v.
GOTTSTEIN.
[123 Iowa, 267, 98 N. W. 770.]
JUDGMENTS — Foreign— Collateral Attack. — A judgment of a
court of another state is conclusive against collateral attack as to
whether the complaint was such as to warrant a personal judgment,
(p. 320.)
JUDGMENTS— Pleadings in Equity. — Prayer for general re-
lief in a complaint in equity will sustain a personal judgment, (p.
320.)
JUDGMENTS — Foreign. — A Demurrer to a petition alleging
that a personal judgment was entered by the court of another state
in conformity with the law thereof, is an admission for the purpose
of deciding on the merits of the demurrer, that such judgment was
warranted by the pleadings, (p. 321.)
JUDGMENTS — Deficiency — Personal Judgment. — A judgment
determining the amount due, establishing a lien and decreeing a
sale of property to pay the debt, and directing a holding of the sur-
plus, until the further order of the court, is not a final, but an inter-
locutory, judgment, and, in case of deficiency, a personal judgment
may be rendered therefor by subsequent decree. (p. 321.)
Berryhill & Henry, for the appellant.
C. E. Hunn, for the appellee.
^^* ]\IcCLAIN, J. The objection raised by the demurrer to
plaintiff's recovery on the Illinois judgment set out in the peti-
tion is that the Illinois court had no jurisdiction of the defend-
ant, and therefore the judgment rendered is void. The claim
of want of jurisdiction is predicated on two grounds : 1. That
in its bill of complaint in the Illinois court the complainant
(plaintiff in this action) did not ask relief by way of a personal
judgment against defendant; and 2. That after rendering a
final decree in the action which did not include any personal
judgment against the defendant, the Illinois court proceeded
without jurisdiction to render a subsequent decree, which is the
320 American State Reports, Vol. 101. [Iowa,
one relied on by plaintiff, in wliich it is adjudged that the com-
plainant recover of the defendant the sum of five hundred and
thirty-two dollars and ninety-three cents, for wdiich execution
shall issue as upon a judgment at common law. It is suffi-
ciently shown by the allegations of the complaint that the de-
fendant appeared in the Illinois court so as to confer upon that
court jurisdiction to render a personal judgment, provided the
court had the power in such proceeding and at the time the
final decree was rendered to enter a personal judgment. In the
complaint filed in the Illinois court relief is asked by way of
foreclosure of a lien against certain personal property alleged
to belong to the defendant for certain storage and handling
charges in connection with such property sliipped by defendant
to complainant at Chicago for sale, with an additional prayer
for "such other and further relief in the premises as equity
may rc(|uire and as to the court may seem meet." The objec-
tion that this complaint did not give the Illinois court juris-
diction to enter a personal judgment is not well taken, for sev-
eral reasons. In the first place, the decree of the Illinois
court having jurisdiction of the parties is conclusive as against
collateral attack on the question of law as to whether the com-
plaint was such as to warrant a personal judgment. There are,
no doubt, expressions in text-books and opinions to the effect
that a judgment for relief, not asked for in the c()m})laint, is
void '^'''* for want of jurisdiction, but, as far as any authorities
to this effect are cited for appellee, they relate to cases where
the quo.-^tion was raised by way of appeal or other method of
direct attack, or where the judgment was by default, and tlicre-
fore without jurisdiction, except in so far as the defendant was
advi.-ed by the notice or summons and the comjtlr.int or other
jilcading filed that judgment might be rendered against him.
Jt is not necessary now to discuss the authorities on this sub-
ject, as our conclusion is sulliciently supported by other con-
siderations hereinafter stated.
It seems 1o Ije well settled under the aufliorities lliat a prayer
for g^'ucral relief in a complaint in equity will sustain a per-
sonal judgment: Her v. Griswold, 83 Iowa, 412, 49 N. W. 1()2;5;
Thomas v. Farley Mfg. Co., 7G Iowa, 735, 39 N. W. 874. Thus,
in Cushman v. i5onfleld, 139 111. 219, 28 is'. E. 937, it is held
that a bill for the sjK'ciiic enforcement of a contract, which also
contains a prayer for general relief, will support a money de-
cree, although tlie specific relief asked cannot be given. And
to the same cfTcK-t are Gibbs v. Davies, 1G8 111. 205, 48 N. E.
March, 1904.] American Trading etc. Co. v. Gottstein. 321
120, and Penn v. Folger, 182 111. 76, 55 N. E. 192. We think
there can be no doubt of the power of the Illinois court, as a
general principle of equity practice, to enter, as it did, personal
judgment for the balance of the indebtedness of defendant to
the complainant after the application in discharge of complain-
ant's lien of the amount realized by judicial sale of the property
subject to the lien.
But, if there could be any doubt of the sufficiency of the
complaint to sustain the decree for a money judgment under
the general rules of procedure recognized in this state, it is re-
moved, so far as this case is concerned, by plaintiff's allegation
in an amendment to his petition that by the general usage and
practice of courts of equity in the state of Illinois and the de-
cisions of the supreme court of said state a court of chancery of
that state has jurisdiction under such prayer for general relief
to enter personal judgment when the same is consistent with
the allegations ^''^ of fact contained in the bill, and that the
decree of the Illinois court was rendered in accordance with
such usage and practice. This allegation of fact as to the law
of Illinois is confessed by the demurrer, and we are bound,
therefore, to assume, for the purpose of this case, as it is now
before us, that the personal judgment was sufficiently war-
ranted by the allegations of the bill of complaint.
Appellee's contention that the Illinois court had lost jurisdic-
tion of the case before the rendition of the decree relied on
by the plaintiff is predicated on the claim that it had previously
rendered a final decree, which did not include a personal judg-
ment against the defendant; but this contention is without
merit. In the first decree it was found that defendant was in-
debted to plaintiff in the sum of six hundred dollars, for which
complainant had a lien upon the personal property referred to,
and the master in chancery, whose report of the amount of in-
debtedness was therein confirmed, was ordered on default of
payment within a time fixed to sell said property, and out of
the proceeds thereof satisfy complainant's lien and the costs of
the proceedings so far as sufficient for that purpose, and hold
the remainder, if any, subject to the further order of the court.
Afterward, by the decree on which plaintiff relies, the court ap-
proved the report of sale and distribution of proceeds by the
master, and, finding that after applying the amount realized
from the sale to the satisfaction of complainant's lien and the
costs a balance of five hundred and thirty-tw^o dollars and
ninety-three cents was left unpaid, rendered a personal judg-
Am. St. Rep. Vol. 101—21
323 American State Reports, Vol. 101. [Iowa,
merit, as already stated, in favor of the complainant and against
the defendant for that amount. Now, it is clear that by the
terms of the first decree some further proceedings in the court
were contemplated and required. Such decree was not a final
decree, but was interlocutory in nature, and after the master
had made the sale, and reported his action in the premises, it
was proper for the court, and within its jurisdiction, to render a
final decree as to the disposition of any proceeds of the sale
remaining after the satisfaction of the ^'^ lien and costs, or,
if any balance of the lien and costs remained unsatisfied, then
for personal judgment against the defendant for such balance.
Plaintiff's petition as amended was not, therefore, subject to
the objections taken to it by the defendant's demurrer, and the
demurrer should have been overruled. The judgment of the
trial court predicated on the sustaining of defendant's demurrer
was erroneous, and it is reversed.
Courtft .97iouTd Render such Judgment, as a rule, as, upon the whole
record, the law requires, without regard to any request or want of
request therefor: Johnson v. White Mountain Creamerv Assn., 68 N.
H. 437, 73 Am. St. Rep. 610, 36 Atl. 13. And they should award any
relief to which the plaintiff's pleading and proof entitle him, regard-
less of the prayer embodied in his complaint: Ross v. Purse, 17 Colo.
24, 28 Pac. 473; McNeill v. Hodges, 105 N. C. 52, 11 S. E. 265. Under
a prayer for general relief, a personal or deficiency judgment, it
seems, may be rendered against a mortgagor: Shepherd v. Pepper,
133 U. S. 626, 10 Sup. Ct. Rep. 438, 33 L. ed. 706; Nolen v. Woods,
80 Tenn. (12 Lea) 615. As to the effect of a default judgment grant-
ing relief not prayed for, see ]\Iach v. Blanchard, 15 S. Dak. 432. 91
Am. St. Rep. 698, 90 N. W. 1042, 58 L. R. A. 811; Russell v. Shurtleff.
28 Colo. 414, 89 Am. St. Rep. 216, 65 Pac. 27; Foley v. Folev, 120
Cal. 33, 65 Am. St. Rep, 147, 52 Pac. 122.
March, 1904.] McClueg v. Beenton. 323
McCLURG V. BRENTON,
[123 Iowa, 368, 98 N. W. 881.]
UNLAWFUL SEAECH — Consent — Evidence. — If, in an action
to recover for searching premises without a warrant, the evidence as
to whether the plaintiff and owner gave his consent to the search
is conflicting, directing a verdict for defendant is erroneous, (p.
325.)
UNLAWFUL SEAECH by Officer. — A search of a private
residence for evidence of crime, without a warrant therefor, cannot
be justified, though made by an officer, (p. 325.)
UNLAWFUL SEAECH— Evidence — Use of Hounds. — In an
action to recover for an unlawful search, evidence as to the conduct
of hounds used to track the thief is admissible only on the question
of malice, in mitigation of damages, (p. 327.)
UNLAWFUL SEAECH— Use of Hounds— Evidenco.-In an
action to recover for an unlawful search of private premises, through
the use of hounds, evidence as to their breeding and training, letters
indorsing, and stories concerning their ability and usefulness, are
not admissible, (pp. 327, 32&.)
UNLAWFUL SEAECH— Evidence— Photographs of Hounds.—
In an action to recover for an unlawful search, photographs of hounds
used in making such search are not admissible in evidence, (p. 328.)
McVey, McYey & Graham and J. D. Laws, for the appellant.
Read & Read and Myerly & Myerly, for the appellees.
300 WEAVER, J. That the appellees did search the house
and premises of the plaintiff for the discovery of alleged stolen
property, and that such search was made without any warrant
issued for that purpose, was not denied on the trial below, and
is conceded in argument. The claim is made, however, that this
act, otherwise unlawful^ was done with the consent of the plain-
tiff^ and it was upon the theory that this defense had been
established without substantial dispute that the trial court di-
rected a verdict against the appellant. We have therefore to
consider whether the evidence made a case from which the jury
might properly have found in appellant's favor. At the date
of the transaction in question, the defendant Brenton was mayor
of the city of Des Moines, Brackett was chief of police, and
Crewse was captain of the night force of said city. Plaintiff
was the head of a family, residing in Des Moines, near the
boundary line between that city and the town of A^alley Junc-
tion. The evidence, giving it the most favorable construction
which it will reasonably bear in plaintiff's favor, as we are re-
quired to do for the purposes of this appeal, tends to show the
324 American State Reports^ Vol, 101. [Iowa,
following state of facts: On or about May 2, 1902, "a Mr.
Brown" informed the mayor that a neighbor, from whom some
chickens had been stolen, desired the ollicers to bring out cer-
tain bloodhounds kept in the city, and try to trace the thief.
Eesponding to this call in person, the mayor on the same eve-
ning started for the scene of action, accompanied by quite a
retinue of followers. Among the number were the chief of
police, the captain of the night force, a city alderman, the city
physician, the "man with the hounds,^' and various other gen-
tlemen, presumably volunteers in the cause of retributive justice.
The order and line of march eire not made clear by the testi-
mony, and we have not been favored with any maps or charts
showing the disposition of the forces. It does appear that some
time during the evening they rendevoused at Valley Junction,
from which base of operations the advance upon plaintiff's house
was made ^'^ about 10 or 11 o'clock P. M. The dogs were
taken to the premises of the person who claimed to have lost
the chickens, and there turned loose for a trial of their de-
tective skill. Following their lead, as is claimed, the mayor's
forces came to tlie house of the plaintiff, who, unsuspicious of
this canine impeachment of his good name and fame, had re-
tired with his family for the night. The mayor and captain
of the night force advanced to the door, gave the alarm in due
form, and demanded entrance. Soon the door opened "about
five or six inches," it is said, revealing the plaintiff clad in a
niglitrobe, and armed with an iron poker. The captain, turn-
ing his head aside to avoid an anticipated blow from the poker,
at the same time deftly inserted his foot between the door and
the jamb, thereby retaining all the advantage thus far gained.
The mayor, noting the captain's peril, interposed to prevent any
assault u]ion him by promptly warning the plaintilT: "None of
that goes here. I am mayor of the city of Des JMoinos, and
we are here on official business." Xaturallv tliis proclamation
tended to chill the ardor of the defense, and the door was soon
opened — wlietbcr by the act of the plaintiff from within, or by
pressure from tlie party without, is a matter of controversy.
The defendants testify that, on being informed of the official
character of tlie mayor's party and the object of their call,
plaintiff allowed tliem to proceed and make the search; and,
if this was not disputed, tlie ruling of the lower court could,
perhaps, be sustained, although it is not free from doubt that
a consent obtained in tlie manner, and under the circumstances
portrayed by the defendants themselves, would be, in any just
March, 1904.] McClueg v.. Brenton. 325
sense of the word, a free and voluntary act. But the evidence
as to the alleged consent is by no means all one way. Plaintiff
and his two sons distinctly deny that consent was given to the
entry into the house or to its search, and declare that the door
was forced open against the resistance of the plaintiff, that the
poker was forcibly wrested from plaintiff's hands, and that,
when one of the sons attempted to hand the key of the chicken-
house to his father, one of the ^''^ mayor's party unceremon-
iously took possession of it, and thereby gained entrance to the
chicken-house. In some material respects their story finds
corroboration in the testimony of the witnesses for the defense.
There is testimony, also, that the search was conducted, by some
of the party at least, in a loud and boisterous manner, and with
little regard for the sensibilities of the plaintiff and his family.
One of the searchers candidly admits that he was a "little en-
thused,'' and did not pay much attention to the details; and it
is said by one witness that another member of the party became
somewhat confused as to the real object of the search, and de-
manded to know whether there was "any beer in the cellar.''
The discouraging answer that there "was no cellar" seems not
to have been fully credited, for it is further testified that the
knot holes in the floor were carefully probed with a pocket rule,
to ascertain the amount of available space thereunder. Upon
such a state of the record, we think it very clear that the jury
should have been allowed to pass upon the issue of fact pre-
sented by the pleadings. If plaintiff's home was invaded in the
manner claimed by him, he has suffered a wrong for which the
law will afford him substantial remedy. On the other hand,
if he freely and voluntarily surrendered his premises to the
search, as claimed by the defendants, he has suffered no wrong;
but, the fact being in dispute the court cannot rightfully inter-
vene to direct a verdict for either party. The right of the citi-
zen to occupy and enjoy his home, however mean or humble,
free from arbitrary invasion and search, has for centuries been
protected with the most solicitous care by every court in the
English-speaking world, from Magna Charta down to the pres-
ent, and is embodied in every bill of rights defining the limits
of governmental power in our own republic.
The mere fact that a man is an officer, whether of high or
low degree, gives him no more right than is possessed by the
ordinary private citizen to break in upon the privacy of a home
and subject its occupants to the indignity of a search for the
evidences of crime, without ^''^ a legal warrant procured for
326 American State Eeports, Vol. 101. [Iowa,
that purpose. No amount of incriminating evidence, whatever
its source, will supply the place of such warrant. At the closed
door of the home, be it palace or hovel, even bloodhounds must
wait till the law, by authoritative process, bids it open. Even
with a warrant, the law of this state forbids a search in the
niglit-time, save upon a showing therefor, and upon special
authority expressed in the writ: Code, sec. 5555. A right thus
carefully guarded by the statute as well as by the common law
is not to he lightly disregarded.
2. Plaintili: assigns error upon the ruling of the trial court
admitting testimony offered by defendants as to the conduct of
the dogs in leading the searching party to his house. Its ad-
mission is sought to be justified by defendants as being a part
of the res gestae, and upon the question of malice. As a part
of the circumstances leading immediately to the search and
thus, perhaps, tending to disclose something of the motive
actuating the defendants, we are inclined to hold, though not
without some hesitation, that it was allowable for the defend-
ants to prove the facts as to the presence of the dogs and the
use made of them on the occasion under investigation. Be-
yond that, however, the defendants should not have been per-
mitted to go. It must be borne in mind that tliis is not an ac-
tion for malicious prosecution or malicious arrest, but for an
alleged wrongful and unauthorized trespass upon plaintiff's
home and property. In a case of the former kind^ an honest
belief in the guilt of the person prosecuted or arrested, and the
facts and circumstances on which such belief is founded, are
ordinarily proper matters of inquiry; and such circumstances,
if amounting to probable cause for the proceeding comphiined of,
will constitute a compk^te defense to a suit for damages. But in
a case like the one at bar the doctrine or rule of probable cause
has no application. To illustrate: in an action for damages
from malicious prosecution for theft the defendant may plead
and prove tbat plaintiff was in fact guilty of the crime charged
against him. and tbus establish a perfect defense. ^'^ But in
an action for an unlawful search it is no defense whatever to
say that plaintiff was a thief, or did in fact have the stolen
proportv upon his premises. The fact may be admitted, but the
right of action remains. There is but one possible phase of the
case upon which the admission of any testimony of this kind
can be upheld. If the jury should find for plaintiff — that the
wrongful search was made, and that in such act the defendants
were moved or inspired by malice toward the plaintiff — they
March, 1904.] McClueg v. Brenton. 327
could, in addition to actual damages, assess a greater or less
sum against the defendants by way of punishment or as exem-
plary damages. In mitigation of such damages, only, evidence
may be received of any fact which fairly and reasonably tends
to show that the act was done in good faith and without malice.
Motive and intent being of the essence of the inquiry where
exemplary damages are sought, any evidence which fairly tends
to their disclosure is admissible: Redfield v. Eedfield, 75 Iowa,
435, 39 N. W. 688; Wallace v. Finch, 24 Mich. 255; Camp
V. Camp, 59 Vt. 667, 10 Atl. 748; Voltz v. Blackmar, 64 N. Y.
440. It is necessary, however, for the court to carefully guard
the application of this rule, to prevent its being made an open
door for the introduction in evidence of much that is imma-
terial, irrelevant, and confusing; and the jury should be in-
formed in cases of this nature that evidence of good motive
or absence of malice goes only to the matter of assessing dam-
ages by way of punishment or example, and should be wholly
disregarded in assessing actual or compensatory damages.
3. Much evidence was admitted over plaintiff's objection
which was merely laudatory of the fame and royal lineage of
the hounds employed in the raid upon the plaintilf's prem-
ises. For instance, the mayor, as a witness, was permitted
to state what he had been informed as to the breeding and
training of the animals, and what he had heard of their
work, and that an old schoolmate of the witness had highly
indorsed them in a letter. In view of the well-kno^Ti ease
with which letters of indorsement from good men are pro-
cured by all kinds of ^''^ candidates for favor it may, per-
haps, be presumed that credentials of this sort could have no
weight with the jury, and that plaintiff suffered no prejudice
therefrom; but we think the matter so clearly incompetent and
immaterial that the objection thereto should have been sus-
tained. The witness Quint was also allowed to testify that he
represents a company which insures banks against burglary, and
makes it a business to "punish and prosecute criminals," and
that in such capacity he had looked up the history of the hounds,
with a view to utilizing their services in the company's business.
From this investigation he says he was "led to believe them
finely bred, safe, and sure, trained for great capacity in follow-
ing and tracking and using the scent, quite intelligent, and prob-
ably the best hounds in the west"; a statement which he em])ha-
sized by stories gleaned from hearsay — how by the remarkable
instinct of these dogs a robberv of a bank had been frustrated
328 American State Eeports^ Vol. 101. [Iowa,
and the murderer of a woman had been driven to suicide after
a chase of thirty miles, the only clue given the dogs being a
scent "from a pair of socks'' of the fleeing male factor.
As a seal to this eulogium, the witness produced photographs
of the hounds, which were admitted in evidence. The particular
point in controversy which tliese portraits were intended to
illuminate is not pointed out by counsel, and our unaided efforts
in that direction have proved fruitless. All this testimony both
of the mayor and Quint was objected to by the plaintiff, and
should have been excluded. The matter being tried was the
alleged trespass upon plaintiff's home, not plaintiff's guilt or
innocence of chicken stealing, nor the pedigree, training, skill,
or appearance of the bloodhounds — a distinction which at times
seems to have been overlooked in the presentation of the tes-
timony.
4. Complaint is also made of the action of the trial court
in allowing defendants to amend their answer upon the eve of
trial; but to permit amendment is a rule applied by ^''^ courts
with great liberality, and we find nothing to indicate that the
discretion thus universally exercised was abused in the present
instance. Other questions raised are such as are not likely to
arise upon a retrial, and we do not consider them.
For the reasons stated, the judgment appealed from is re-
versed.
SEARCH OF PREMISES OF PRIVATE PERSONS.
I. Security from Unlawful Search, 328.
II. Seaicli Under Warrant,
a. Generally, 329.
■fa. Requisites of Warrant.
1. Designation of Place, 331.
2. Description of Property, 332.
III. Liability Under Search-warrants.
a. Malicious Prosecution, 332.
I). Liability in Trespass, 333.
IV. Warrant of Arrest as Search-warrant, 331.
I. Security from Unlawful Search.
An unreasonable search is an examination or inspeclion without
authority of law, of one's premises or person, with a view to the
discovery of stolen, contraliand or illicit property, or for some evi-
dence of guilt, to be used in the prosecution of a criminal action.
The right of in<livi<luals to be exempt from such searches is guar-
anteed b}' an amendment to article 4 of the constitution of the
United States, and such amendment is incorporated generally in the
constitutions of the several states. Such amendment reads as follows:
March, 1904.] McClurg v. Brenton. 329
* ' The right of the people to be secure in their persona, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause, sup-
ported by oath or aifirmation, and particularly describing the place
to be searched, and the person or things to be seized": U. S. Const.,
amendment to article 4. But the right to be secure in one's own
house is not a right derived from the constitution alone. It existed
long before the adoption of the constitution at the common law;
United States v. Crosby, 1 Hughes, 448, Fed. Cas. No. 14,893.
The violation of the right to be secure in one's home does not
require actual entry upon the premises and a search for and the seiz-
ure of property in order to constitute it an unreasonable search and
seizure. The compulsory production of one's private books and
papers to be used against him in a criminal or penal proceeding, is
within the meaning and spirit of such constitutional provision: Boyd
v. United States, 116 U. S. 616, 6 Sup. Ct. Eep. 524, 29 L. ed. 746.
Searches made upon the complaint or suggestion of one party of
the house or possessions of another, in order to secure a personal
advantage, and not with any design to afford aid in the administra-
tion of justice in reference to acts or offenses in violation of penal
laws, are unreasonable and unwarranted; as, for instance, a search
made on a warrant issued by a judge in insolvency, on the complaint
of an assignee for property belonging to the debtor: Kobinson v.
Eichardson, 13 Gray, 454,
The amendment to the United States constitution above referred
to, declaring that the right of the people to be secure in their prop-
erty against unreasonable searches does not apply to state govern-
ments, but is a limitation exclusively upon national power. It has
no application to proceeding under authority of the state. But never
theless the same right is generally guaranteed by the state constitu-
tions: Eeed v. Eice, 2 J. J. Marsh. 44, 19 Am. Dec. 122; State v.
Atkinson, 40 S. C, 363, 42 Am. St. Eep. 877, 18 S. E. 1021; State v.
Brennan, 2 S, Dak. 384, 50 N. W. 625.
IT. Search Under Warrant.
a. Generally. — In no case, it is believed, has any person, even a
peace officer, the right to enter and search the private premises of
another for evidence of crime or of a violation of penal laws except
under authority of a search-warrant: Eeed v. Adams, 2 Allen, 413.
Perhaps, after a person is alleged to have committed a crime his
premises may be searelied for evidence thereof, without a warrant by
permission and with the assistance of the servant or agent of the
owner, when the former is in charge of the premises: State v. Gris-
wold, 67 Conn. 290, 34 Atl. 1046, 33 L. E. A. 227; Grim v. Eobinson,
31 Neb. 540, 48 N. W. 388. A peace officer vested with authority to
"inspect" certain enumerated places cannot without a warrant, in-
330 American State KEroRxs, Vol, 101. [Iowa.
vade or search such a house or place on his mere suspicion that mis-
demeanors are committed therein. The power to "inspect" does
not confer authority of visitation and search: People v. Glennon, 37
Misc. Rep. (N. Y.) 1, 74 N. Y. Supp. 794. After pointing out that
policemen have no right to invade and search private houses without
a warrant and on mere suspicion or hearsay that some sort of crime
may have been committed therein, or that such house contains some
evidence that a crime has been committed. Judge Gay nor said: "If
it were so that we are all open to have our houses invaded, ran-
sacked and searched by policemen on nothing except what they may
choose to call their suspicions, and that we may be arrested in the
same way, we would not be living under a free government, but
under a most intolerable despotism, the like of which former genera-
tiors struggled against until they obtained those guaranties of in-
dividual rights and liberties which made them free, the chief of
which were that their houses should not be invaded and searched,
and that they should not be seized except by warrant and process
of law": People v. Glennon, 37 Misc. Rep. (N. Y.) 7, 74 N. Y. Supp.
794. The means generally invoked, and the only legal means that can
be invoked, to search the premises of a private individual, is a search-
warrant, which is an authority in writing from the state signed by a
magistrate, and directed to an officer, commanding him to examine
a designated place for articles alleged to be concealed there contrary
to law. Such a warrant may be issued to search for property stolen
or embezzled, or which has been used as the means of committing a
felony, or which some person has in his possession with intent to use
as a means of committing a crime: People v. Noelke, 29 Hun, 461;
Langdon v. People, 133 111. 382, 24 N. E. 874; Boyd v. United States,
116 U. S. 616, 6 Sup. Ct. Rep. 524, 29 L. ed. 746. "Search-warrants
were never rocogiiized by the common law as processes which might be
availed of by individuals in the course of civil proceedings, or for the
maintenance of any mere private right, but their use was confined to
cases of [inblic prosecutions, instituted and pursued for the suppres-
sion of crime or the detection and punishment of criminals. Even
in tliose cases, if we may rely on the authority of Lord Coke, their
legality was formerly doubted, and Lord Camden said that they
crept into the law by imperceptible practice. But their legality has
long been considered to be established on the ground of pul)lic neces-
sity, because, without them, felons and other malefactors would es-
cape detection": Robinson v. Richardson, 13 Gray, 456. The most
frequent use of the search-warrant is to search for goods alleged to
have been stolen and to such use it seems formerly to have been con-
fined: Stone v. Dana, 5 Met. (Mass.) 98; Entick v. Carrington, 19
How. St. Tr. 10119; St:>te v. Mann, 5 Ired. 45.
Statutes in many of the states authorize the use of the search-
warrant to search for ami seize lottery tickets and materials: Com-
monwealth V. Dana, 2 Met. (Mass.) 329; and gaming implements:
March, 1904.] McClurg v. Bkenton. 331
Commonwealth v. Gaming Implements, 119 Mass. 332; Hastings v.
Haug, 85 Mich. 87, 48 N. W. 294; or for the seizure of intoxicating
liquors kept for sale in violation of law: Commonwealth v. Intoxica-
ting Liquors, 6 Allen, 599; Guenther v. Day, 6 Gray, 490; Downing
V. Porter, 8 Gray, 539; Commonwealth v. Intoxicating Liquors, 105
Mass. 178; Hussey v. Davis, 58 N, H, 317; State v. Newman, 96 Wis.
258, 71 N. W. 438.
b. Rectuisites of Warrant.
1. Designation of Place. — If a search-warrant is issued upon prob-
able cause supported by affidavit, and particularly describes the place
to be searched and the property to be seized, it is sufficient: Langdon
V. People, 133 111. 382, 24 N. E. 874; but a search-warrant, to be of any
validity and to authorize a search, must describe the place to be
searched, the person against whom the warrant issues, and the prop-
erty sought with such certainty as to identify them: Keed v. Kice,
2 J. J. Marsh. 44, 19 Am. Dec. 122; Byrnside v. Burdett, 15 W. Va.
702; Ashley v. Peterson, 25 Wis. 621. Thus, a search-warrant based
on an affidavit that on a specified date a certain amount of cotton-
seed was taken from the affiant's premises and that there is probable
cause for believing such property to be on a certain plantation, oc-
cupied by two designated persons, is void for want of a certain de-
scription of the place to be searched: Thrash v. Bennett, 57 Ala. 156.
It has been held, although we do not think it to be the prevailing
rule, that the description in the warrant of the place to be searched
should be as certain and specific as would be necessary in a deed of
conveyance: Jones v. Fletcher, 41 Me. 254; State v. Bartlett, 47 Me.
388; but the place to be seached must be particularly designated in
the search-warrant, and a warrant authorizing a search of any sus-
pected place is too general to be of any validity: Frisbie v. Butler,
Kirby (Conn.), 213; People v. Holcomb, 3 Park. Cr. Rep. 656. The
warrant must specifically describe the goods, place, and person, and
direct the officer to search such place and arrest such person, and if
any of these preliminaries is omitted, or if the warrant is too gen-
eral, the proceedings are coram non judice: Grumon v. Raymond,
1 Conn. 40, 6 Am. Dec. 200; Sandford v. Nichols, 13 Mass. 286, 7
Am. Dec. 151. A search-warrant commanding the officer to diligently
search a certain house for stolen goods will not authorize him to
force his way into an adjoining house and search it: Larthet v. For-
gay, 2 La. Ann. 524, 46 Am. Dec. 554; and a warrant to search the
dwelling-houses of a certain person only authorizes the officer to
search the house in which such person lives, and if he searches
a house liired and occupied by another, although owned by such per-
son, he is guilty of a trespass: Humes v. Taber, 1 R. I. 464.
A house or place where the contraband goods are believed to be
concealed is sufficiently designated and described in the warrant
by denominating it as the office of the person named in the warrant,
and specifically designating the street and number of its location,
332 American State Reports, Vol. 101. [Iowa,
although the person named and another occupy such office together:
Commonwealth v. Dana, 2 Met. (Mass.) 329. And a warrant to
search the house of a particular person and the barn, outhouses, and
grain stacks of such person, on the same farm, is sufficiently specific,
and not void for uncertainty: Meek v. Pierce, 19 Wis. 318.
Authority to search a house will justify the search of a shop on
the same premises if the goods under search are such as might reason-
ably be found in such shop: Dwinnels v. Boyington, 3 Allen, 310.
A warrant directing the officer to search the house of a certain named
person authorizes the search of his dwelling-house situated on the
premises designated in the warrant: Wright v. Dressel, 140 Mass.
147, 3 N. E. 6.
2. Description of Property. — The property to be seized under a
search-warrant must be particularly described therein and no other
property can be taken thereunder. The goods to be seized must be
described with such certainty as to identify them: Eeed v. Rice, 2
J. J. Marsh. 44, 19 Am. Dec. 122; State v. Slamm, 73 Vt. 212, 87 Am.
St. Eep. 711, 50 Atl. 1097, Thus, a description as "goods, wares and
merchandise," without any specification of their character, quality,
number, or weight, or any other circumstances tending to distinguish
them, is not sufficiently particular or definite: Sandford v. Nichols,
13 Mass. 286, 7 Am. Dec. 151. If the warrant and the complaint on
which it is issued are on the same paper, and the goods to be searched
for are properly designated and described in the complaint, and
the warrant directs the officer to search for the property, "mentioned
in the above complaint," the process is legal and sufficient, without
further designation or description in the warrant: Commonwealth
V. Dana, 2 Met. (Mass.) 329. A description in the warrant of the
property to be seized as "three cases of misses' and women's boots,
of the value of one hundred dollars, a lot of oak-tanned soles, of the
value of fifty dollars, and ten sides of sole loalher, of the value of
forty dollars," is sufficient: Dwinnels v, Boynton, 3 Allen, 310; or
such description as "goods and chattels, to wit, gaming implements
and other chattels and apparatus, which complainant is unable to
specify, used, and kept to be used in unlawful gaming," is sufficient
as a description of the prox^erty to be taken: Hastings v. Ilaug, 85
Mich. 87, 48 N. W. 294.
III. Liability Under Search-warrants.
a. Malicious Prosecution. — One who maliciously and without
probable cause institutes and carries forward proceedings under a
search-warrant is liable to an action for malicious prosecution: Carey
V. Sheets, 67 luJ. 375; Whitson v. May, 71 Ind. 269. And a mere
apjilieation for a search-warrant, on the ground that the goods have
been stolen, and are concealed within a person's inclosure, if made
with malice and without probable cause, is sufficient ground to sus-
March, 1904.] McClurg v. Brenton. 333
tain an action for malicious prosecution against the person making
such application: Miller v. Brown, 3 Mo. 127, 23 Am. Dec. 693. In
BQCh an action the plaintiff shows a prima facie case by proof that
upon the search the property was not found, that the return of the
warrant so showed, and that for a long time he had borne a good
reputation in the neighborhood for integrity and honesty: Olson v.
Trete, 46 Minn. 225, 48 N". W. 914. Or if the complaint alleges, and
the evidence shows that defendant has falsely accused plaintiff of
theft, and maliciously and without probable cause procured a war-
rant to search his premises and has caused it to be executed in such
manner as to cause gross humiliation, a trespass is sufficiently shown
for which the defendant is liable, and it makes no difference whether
the action is considered as one for slander, false imprisonment or
malicious prosecution: Doane v. Anderson, 60 Hun, 586, 15 N. Y.
Supp. 459.
b. Liability in Trespass. — The form of action usually and properly
employed to recover damages for a wrongful search under a warrant is
trespass: Anonymous, Minor, 52, 12 Am. Dec. 31; Eeed v. Legg, 2
Harr. 173; Doane v. Anderson, 60 Hun, 586, 15 N. Y. Supp. 459. If
the search-warrant is in any way insufficient, it affords no protec-
tion to those charged with committing trespass in its execution:
Eeed v. Lucas, 42 Tex. 529. But it seems that trespass will not lie
against a person who has procured a search-warrant to search for
stolen goods, if such warrant was duly and regularly issued and
executed. But in such an instance an action on the case will lie, if
the party procuring the warrant was actuated by malicious motives:
Beaty v. Perkins, 6 Wend. 382. It has been held that if no goods
are found under the search, the person taking out the warrant is
a trespasser and liable as such: Eeed v. Legg, 2 Harr. 173; Simpson
V. McCaffrey, 13 Ohio, 508. It has also been decided that a search
warrant is a sufficient justification, though the stolen goods are not
found, even to the party at whose instance the writ issued, for an
entry upon the suspected place, if the doors are found open and the
entry is peaceable. But whether it would be a justification if the
doors are found closed and are broken down is not decided: Chip-
man V. Bates, 15 Vt. 51, 40 Am. Dec. 6.'33. If the defendant in tres-
pass entered the dwelling-house of the plaintiff by virtue of a search-
warrant, to find stolen goods, and, after the search had been con-
cluded and the goods found and taken, the defendant, on some other
pretext, again entered the house or aided others in doing so, for the
purpose of finding other evidence against the plaintiff, to aid in
convicting him of the theft of the goods, the defendant is guilty
of trespass in effecting the second entry into such dwelling: Lawton
V. Cardell, 22 Vt. 524.
Injury to the plaintiff's reputation and feelings may be alleged,
proved, and recovered for in an action of trespass vi et armis, for
334 Ameiucan State EEroRTs^ Vol. 101. [Iowa,
unlawfully entering his house under the pretense of searching for
stolen goods: Anonymous, Minor, 52, 12 Am. Dec. 31; Larthet v. For-
gay, 2 La. Ann. 524, 46 Am, Dec. 554, Circumstances of reasonable
suspicion that stolen goods were upon the premises may be proved
in mitigation of damages in trespass for a wrongful search under a
warrant: Simpson v. McCaffrey, 13, Ohio, 508.
IV. Warrant of Arrest as Search-warrant.
A warrant of arrest may sometimes answer the purpose of a search-
warrant, as a warrant for an arrest for a felony authorizes the offi-
cer in entering the shop or office of the person accused and there
seizing the chattel alleged to have been stolen: Banks v. Farwell,
21 Pick. 156. Thus, under a warrant for the arrest of a lottery
ticket dealer, the officer is authorized to search the room where such
dealer is found, and seize a package of lottery tickets there found
which belong to such dealer: Collins v. Lean, 68 Cal, 284, 9 Pac, 173.
STATE V. RAPHAEL.
[123 Iowa, 452, 99 N. W. 151.]
BUEGLARY. — Possession of Recently Stolen Goods, in the ab-
sence of a satisfactory explanation of the source of such possession,
justifies a finding that the possessor broke and entered the building
from which they were stolen, (p. 336.)
CRIMINAL LAW — Possession of Recently Stolen Goods— Ex-
planation.— If the attendant circumstances are such as to satisfy the
jury of the falsity of the explanation of the possession of recently
stolen goods, and of the guilt of the possessor, his conviction is
justified, (p. 336.)
CRIMINAL LAW — Possession of Recently Stolen Goods. — •
Burden of Proof in on one in possession of recently stolen goods, to
satisfactorily explain his possession, (p. 336.)
L. M. ^^^litney and J. T. Sullivan, for the appellants.
C. il. Mullan, attorney general, and L. De Graff, assistant
attorney general, for the state,
^^^ SHEHWIX, J. At some time between the twenty-first
and twenty-eighth days of February, 1903, the dwelling-house
of ^Irs. C. W. '*^^ Bown, in the city of Waterloo, Iowa, was
broken and entered, and a large amount of silverware and other
property was taken therefrom. The defendants at that time
lived with their parents in Waterloo, occupying a room or rooms
in the second story of the house^ near an attic room, in which
April, 1904.] State v. Raphael. 335
they kept their clothing and other effects. Very soon after the
burglary was discovered, this house was searched, and in this
attic room the officers found a portion of the silverware and
other property which had been stolen from the Bown house.
This was wrapped in a cloth, and was taken possession of by the
officers. Other articles of silverware were found there at this
time, but, not being then identified, they were not taken. Three
or four days after another search of the premises was made,
and a coat and vest belonging to one of Mrs. Bown's sons, which
had been stolen at the time of the burglary, were found in this
same attic room. Between the two searches, property which
was found in the room upon the first, but not taken by the offi-
cers, and which was afterward proven to have been stolen from
the Bown residence, had been taken away, and was not again
located. The defendant Joseph Kaphael admitted upon the
trial that the silverware and other property found in the attic
and taken by the officers upon the first search had been put there
by him, but claimed that it had been taken to the house and
delivered to him for safekeeping by a young friend from Ne-
braska, who had stayed with the family a few days, and left
sliortly before the search was made, and whose whereabouts he
did not then know. When the coat and vest were found and
taken by the officers upon the second search, the mother of the
defendants told the officers that they belonged to her son, the
defendant Charles Raphael. He was not then under arrest,
and upon his return home, soon after the search had been made,
his mother told him of it, and of the taking of the coat and vest
by the officers. He testified that, upon looking for his coat and
vest, he found them gone, and that he immediately thereafter
went to the sheriff's office, "looked at the coat," and thought it
his. He did in fact make a thorough ^^'^ examination of the
garments in tlie sheriff's office, and even after he had been told
that young Knox claimed them, he insisted that they belonged
to him : that he had bouglit them in Nebraska three or four
years l)efore, brought them to Waterloo, and had them in his
possession up to the time they were taken from his home; and
tliat he could identify them at any place; and this claim he did
not abandon until one of the pockets of the coat was turned
inside out, and the name "Knox" found thereon.
The appellant Joseph Raphael insists that, because of his ex-
planation of his possession of the silverware found in the attic
and taken therefrom upon the first search, the case, as to him,
should not have gone to the jury, and that the court erred in
336 American State Eeports^ Vol. 101. [lawa,
not directing a verdict for him. But with this contention we
cannot agree. This proi:)erty was found in his possession but a
few days after it was stolen, and, in the absence of a satisfactory
exphmation of the possession, the jury would be justified in
finding that he broke and entered the building from which it
was stolen: State v. Jennings, 79 Iowa, 513, 44 N. W. 799;
State V. Williams, 120 Iowa, 36, 94 N. W. 255; State v. Brady,
121 Iowa, 561, 97 N. W. 62. It is true that the convenient other
person from whom stolen property is so often received was
present in this case in the defendant's explanation, but the jury
would not be bound to believe the explanation, though it might
not be contradicted by other direct evidence ; and, if the attend-
ant circumstances were such as to satisfy it of the falsity of the
explanation, and of the guilt of tlie defendant, a conviction
would be justified: State v. Brown, 25 Iowa, 566.
The fact tliat some of the other property stolen at the same
time, and found in the attic upon the first search, but not then
identified and taken by the sheriff was removed and secreted
before the second search, and after the defendant's friend had
left, was alone a strong circumstance tending to prove the fal-
sity of the explanation.
The defendant, Charles Raphael, contends that there was no
evidence tending to prove his possession of the coat and
"^^^ vest, and that the court should not have submitted his case
to the jury or instructed on that question. We think otherwise.
It may be conceded that the coat and vest were not found in his
immediate possession, but the fact that he looked for them when
informed by liis mother that they had been taken from the
attic by the sheriff, and, when not found there, immediately went
to the sheriff's office, and, after a full examination of the gar-
ments, claimed and insisted that they were his, and that he had
owned them for a long time, was evidence sulfieient to warrant
tlie jury in finding that they were in fact in his possession when
they were found in the attic; and, if in his possession at that
time, it devolved upon him to explain such possession. This he
attemj)tod to do by the statement that Patrick, the friend whom
Joseph Kaphael testified had taken the silver to the house,
must also liave left his coat and vest, and taken his in place
thereof. Tliore is no evidence in the record tending even to
show tliat Patrick had a coat and vest similar to these, or that
he took them to the house of the defendants, and we think the
jurv warranted in disregarding the attempted explanation of
Charles Eaphael.
April, 1904.] Crawford v. Meis. 337
We think the evidence as to both defendants warranted the in-
structions given by the court on the question of the recent pos-
session of the silverware and the clothing, and warranted also
the verdict of guilty. The judgment is therefore affirmed.
The Possession of Stolen Property as evidence of guilt is the sub-
ject of a monographic note to State v. Drew, 179 Mo. 315, post, p. 474.
CRAWFORD V. MEIS. CRAWFORD v. LUTHMERS.
CRAWFORD V. BARTMAI^.
[123 Iowa, 610, 99 N. "W. 186.]
REMAINDEKMEN — Purchase of Tax Title.— Eemaindermen
who have no possession, or rig-ht of possession, at the time of a tax
sale of the property, may purchase an outstanding tax title for their
exclusive benefit as against other remaindermen, (p. 339.)
LIFE TENANTS. — Purchase of Tax Title by a life tenant
does not vest the fee in him as against a remainderman, and the
transaction amounts simply as a redemption froni the tax sale. (p.
340.)
EEMAINDEKMEN — Ouster of — Adverse Possession. — If life
tenants and part of the remaindermen join in a warranty deed, and
the grantee enters into possession thereunder and continues such
possession for the statutory period of limitation, paying taxes and
making improvements, without knowledge of any defect in the title,
which defect is known to the remaindermen not joining in the con-
veyance, this amounts to an ouster of the latter which ripens iato
a title by adverse possession, (p. 343.)
Ilurd, Lenehan & Kicsel, for the appellants.
Longueville & Kintzinger, J. B. and A. M. Utt and Lyon &
Lyon, for the appellees.
<*i2 BISHOP, J. At the outset the rights of the parties un-
deniably wore as follows: The said Theophilus Crawford,
*^^^ Jr., and Eliza, his wife, "and the survivor of them," were
entitled to the possession, use and income of the property dur-
ing life. L^pon their death their children named would bo-
come entitled to the estate as tenants in common, for a gift by
a testator with remainder over creates a tenancy in common
in the remaindermen after the termination of the life estate.
Xow, upon the happening of the death of Alexander, one of the
remaindermen, his parents, the life tenants, without doubt in-
herited his one-sixth interest. With this accepted as the situ-
ation, we may pass on to the time when the lands were sold for
Am. St. Rep. Vol. 101—22
338 American State Reports, Vol. 101. [Iowa,
taxes and the tax deed issued to David Crawford. Note may
be taken at this point of the contention on the part of appellants
to the effect tliat in the matter of taking title to the estate under
such tax deed David Crawford acted solely as a trustee for and
on behalf of the life tenants and the several remaindermen, and
that the subsequent conveyances by him made were intended
to be in execution of his trust, and not otherwise. Accordingly,
it is insisted that the effect of such conveyance was simply to
restore all parties to their former status, the three remainder-
men to whom conveyance was made taking title in trust for
themselves and their coremainderman. Without setting forth
the evidence at length or entering upon an extended discussion
thereof, we may dispose of this contention by saying that the
evidence in the record which we regard as competent docs not
satisfy us that the relation of trustee and cestui que trust existed
as contended for. We may proceed, therefore, upon the theory
that David Crawford was a stranger to the life estate as well
as to the estate in remainder, and that by his tax deed he ac-
quired a perfect title to the property as against botli the life
tenants and the tenants in remainder. Taking this to be the
situation, we may at once inquire what were the rights of the
parties under the several deeds as executed and delivered by
David Crawford.
First, as to the deed from David Crawford to George W.
Franklin, and Helen A. Crawford. We tliink it clear ***"* that
such deed had the effect to vest a perfect title in the grantees
namc.'d therein. It is true, as contended for by counsel for ap-
pel Units, tliat wliere there exists, as between joint tenants or
tenants in common, a reciprocal duty of protecting the joint es-
tate, one may not absorb or get rid of the interest of his cotcn-
ant by alb)wing the property to go to tax sale, and thereunder
acquire tide to the entire estate tlirough the medium of a tax
deed. And tliis is true whether the tax deed is procured to
lie executed directly to the tenant or to another through whom
such tenant claims as grantee: Weare v. Van Meter, 43 Iowa,
130, 20 Am. I?ep. GIG; Austin v. Barrett, 44 Iowa, 490; Blumen-
tbal v. Culver, IIG Iowa, 32G, 89 N. W. IIIG; Phillips v. Wil-
marth, 98 Iowa, 32. GG X. W 1053. It is to be noted, how-
ever, that in each of the cases cited, and in others where the
like rule is declared, tlie cotenants were in possession or entitled
to possession, and each was charged with the duty of protecting
the joint estate. And it is under such circumstances that pay-
ment by one cotenant is held to be })resumably for the benefit
April, 1904.] Crawfoed v. Meis. 339
of all, and he who pays may charge the several interests of his
cotenants with the proportionate parts which such cotenants
should have paid: Cooley on Taxation, 467. The reason for
the rule seems to be that, there being a reciprocal duty on the
part of the cotenants to pay the taxes assessed, and as a part
of the taxes for which the land is sold is a claim upon the pur-
chaser's share, the sale is based in part upon his own default,
and it would be inequitable to permit him to profit by his own
wrong: 11 Am. & Eug, Ency. of Law, 1st ed., 1082. Here,
however, the cotenants in remainder were not in possession, nor
did they have any right of possession, and they were not charge-
able with the duty and responsibility of making payment of
taxes. As between themselves, it cannot be said that there were
any reciprocal rights or duties. The duty of paying taxes rested
upon the life tenants, and, should one of the remaindermen
have seen fit to pay taxes allowed to become delinquent for the
protection of the estate, he could not recover any portion of the
amount so paid from his coremaindermen. ^^^ There being no
duty to pay, there could be no such thing as an enforced con-
tribution. It must be manifest that, as applied to such a case,
the rule contended for by counsel for appellants can have no
force or application. Quite to the contrary, the principle which
should be made to govern is that which finds expression in the
opinion in the case of Alexander v. Sully, 50 Iowa, 192. It
was there held that one who, prior to the issuance of a tax deed,
had occupied the relation of a cotenant in remainder, and whose
estate had been terminated by such deed without his fault or
wrong, may purchase the entire estate of the holder of the tax
title; and this he may do for his own exclusive benefit. We are
content to follow the doctrine of the case cited, and, giving the
same application to the case before us it must be said that there
was no restriction upon the right of the grantees of David
Crawford to acquire and hold title for their own benefit. This
being true, it remains to be said that the title of the present
owners, derived through such grantees, is not subject to attack
at the hands of plaintiffs and intervener. Passing other mat-
ters of defense alleged and insisted upon, we conclude that witli
respect to the lands under present consideration the decree of
the trial court was right, and should be affirmed.
We may consider now the effect of the deed as made by David
Crawford to Eliza Crawford. Having in mind the fact that
she. with her husband, were simply life tenants under the will
of Theophilus Crawford, Sr., we think it clear that the deed
S4.0 American State Eepoets, Vol. 101. [Iowa,
as made to her could have no other effect than to restore the life
tenancy and the ownership of the inherited one-sixth interest in
the estate in remainder. As life tenant, it was the plain duty
of Mrs. Crawford to protect not only her life estate, hut the es-
tate in remainder, hy the payment of taxes when due: Olleman
V. Kelgore, 53 Iowa, 38, 2 N. W. 612; Booth v. Booth, 114
Iowa, 79, 86 X. W. 51. And certainly a life tenant charged
with the duty of paying taxes will be estopped, as against the
remaindermen, from claiming to be the o^\^ler of the fee title
under a tax **^" deed, it appearing that such tenant has failed
in his duty to pay the taxes, and has allowed the lands to be sold
therefor; and this is true whether title is sought to be taken
directly through the medium of the tax deed or by conveyance
procured from one who has purchased at the tax sale. In either
case the transaction amounts in law simply to a redemption
from the tax sale. To hold otherwise would be to open wide
the door to gross frauds and abuses, lor, while a remainderman
may protect his interest in expectancy by making payment of
taxes he has the right to rely upon payment being made by the
life tenant, and he may, therefore, as against such tenant, give
himself no concern during the continuance of the life estate:
C'ooley on Taxation, 2d ed., 467.
IS'ow, as the deed to Mrs. Crawford had tlie effect, in legal
contem})latiun, only to redeem the lands from tax sale, and
thus restore the prior existing riglits, it follows that, s])oaking
iitrictly, by the deed to the several defendants in these cases in
which she and her husband subsequently joined, there was con-
veyed by them only such interest as they then liad, to wit, the
life estate covering all the lands thus conveyed, and tlie one-
sixth interest in the estate in remainder derived through the
death of their son Alexander. As three of the remaindermen
joined in such conveyance, full title was vested in the griintecs,
subject only to such rights as became reinvested in Charles and
Lewis Crawford, as remaindermen, by virtue of tlie deed from
David Crawford to their mother, Eliza Crawford. This the
trial court found and decreed, and, further, that the interests
thus ri'in vested in said Chai'les and Lewis Crawford and the
legal licirs of the latter continued in full force at the time of
the commenc(nnent of these actions — this upon the theory that
the statute of limitations, pleaded bv defendants, did not begin
to run until the death of Eliza Crawford in the year 1899.
The appeal of defcTulant ^leis is addressed to that portion of
the decree which denies to him the benefit of the statute ^^'' of
April, 1904.] Crawford v. Meis. 341
limitations, and this presents the only remaining question in the
case. It is the contention of appellee that, conceding the effect
of the deed to Eliza Crawford when made to have been as
stated, still his plea of the statute should have been sustained.
On the other hand, it is the position of appellants that, taking
the situation to be as stated, and having it in mind that, as re-
lated to the one-sixth interest in remainder, the possession of
their cotenants was their possession, and that, as related to the
life estate, they had no right of entry until the termination of
such estate by the death of their mother, it follows that the bar
of the statute cannot be successfully asserted as against them.
Directing our attention to the question thus made, it is certain
that Eliza Crawford and her husband, as owners of a one-sixth
remainder interest, and therefore cotenants in expectancy with
the other remaindermen, conveyed that interest by their deed
to defendants. Aside from such one-sixth interest, and strictly
speaking, it is to be said that they conveyed no more by such
deed than the life estate interest possessed by them. Now,
clearly enough, it is the general rule that the possession of one
tenant in common is the possession of all the cotenants and in-
ures to the benefit of all : 17 Am. & Eng. Ency. of Law, 2d ed.,
669, and cases cited. But that one cotenant, or a grantee
thereof, may work an ouster and disseisin of his cotenants, and,
having held adverse possession under claim of right or color
of title for the limitation period, may assert full title, and may
invoke the bar of the statute in protection thereof as against
his cotenants, is also well-settled doctrine: Burns v. Byrne, 45
Iowa, 285; Ivinney v. Slatter}', 51 Iowa, 353, 1 N". W. 626;
Bader v. Dyer, 106 Iowa, 715, 68 Am. St. Eep. 332, 77 N. W.
469. While in such cases an actual ouster must be made to ap-
pear, still this does not of necessity mean an actual physical
eviction. As was said in the Burns case, it means "a posses-
sion attended with such circumstances as to evince a clajjn of
exclusive right and title, and a denial of the right of the other
tenants to participate in the profits." In Kinney v. Slattery,
51 Iowa. 353, 1 N". W. 626, it appeared that Jane ^^^ Dobbins,
a widow, died seised of the lands in question in the year 1860.
She left as her only heirs at law a son, W. C. Dobbins, and a
daughter, Ann E. Dobbins, since married to J. W. Kinney. In
1862 the former conveyed the land as his own to one Dutton,
and the defendant Slattery claims under a conveyance from
Dutton. i\rore than ten years later Ann E. Kinney commenced
her action to recover an undivided half of said land. The de-
342 American State Eeports, Vol. 101. [Iowa,
fendant pleaded actual, open and adverse possession for the
statutory period. In the course of the opinion it was said that :
"The con\eyance of the land by W. C. Dobbins as his own, and
the possession taken by his grantee under such conveyance,
evinced a claim of exclusive right and title, and a denial of the
right of the plaintiif. This amounted to an actual ouster and
disseisin of the plaintiff." So, too, it may be conceded that as
a general rule the limitation statute does not begin to run as
against a remainderman until the termination of the preceding
estate: Dugau v. Follett, 100 111. 581; Van Ormer v. liarley,
1U2 Iowa, 150, 71 N. W. 211. But tlie rule supposes an unin-
terrupted continuation of the relation of life tenant and remain-
derman. As in the case of cotenants, it does not apply where
there lias been an ouster and disseisin by the life tenant, or one
claiming by or through him, and tliis under claim of riglit or
color of title, followed by adverse possession for the statutory
period. In the recent case of Murray v. Quigley, 119 Iowa, G,
1)7 Am. St. liep. 27G, 92 N. W. 869, we distinctly held that,
especially in view of our statutes giving to remaindermen and
reversioners a right of action to settle disputed questions of title
notwithstanding the continued existence of the dominant estate,
the bar of the statute may be invoked as against a remainder-
nian, who, knowing that his rights are being disputed or as-
sailed, has failed during the limitation period to assert such
rights as against one holding possession adversely and elainiing
under right or color of title to be the sole owner. It is thought
by counsel for appellant that the doctrine thus announced is
unsound, and sliould not be adhered to, but wo tliink otherwise.
The rule involves no hardsliip and the Ijenericent ell'cct thereof
^^^* must be to bring up for settlement disjiuted questions of
title before becoming stale, and wliiK; yet the facts are within
reach of the parties interested. Accoiiliiigly, wo are content to
give the doctrine this further recognition, and to add thereto
the sanction of our ])rosent holding.
We niav now turn to the record to ascertain whetlior, as con-
loiuled for hy ajjpellees, the facts in the instant cases warrant
an a])])licatiou of the matters of doctrine announced in the
ca.-es to which we have made reference*. It may be noted, in the
lirst place, that the conveyances by Thco])hilus, Jr., and Eliza
Crawford wvro by deeds of general warranty. The grantees paid
the full value of the property, and at once entered into posses-
sion. This contintied openly and notoriously down to the time
ef the commencement of these actions — a period of nearly thirty
April, 1904.] Crawford v. Meis. 343
years; and incident thereto they have paid all taxes and made
many and valuable improvements. All this was well known to
plaintiff, Charles Crawford, and to Lewis Crawford in his life-
time, and, following his death, to his heirs. In this connection
it may be said that Lewis Crawford became of age about the
time the deeds to defendants were executed, and Charles Craw-
ford became of age about the year 1876, so that no question of
the rights of minors is involved. Xow, it may be conceded that
a critical examination of the records of Dubuque county, aided
by other evidence suggested thereby, would have revealed the
facts in reference to the title to the lands in controversy, and
that the grantees of Theophilus, Jr., and Eliza Crawford did
not, in point of fact, obtain full and perfect title to such lands.
Eat it is essential only to the running of the statute that there
be a good faith claim of right based upon color of title. It ap-
pears that Meis had no actual knowledge that his title was de-
fective; on the contrary, he acted upon the belief that he had
perfect title in all respects, and this continued down to a short
time before these actions were brought. We conclude, there-
fore, that, taking into consideration the character of the con-
veyances under which appellee holds, the character of his sub-
sequent possession and the period thereof, the knowledge ^'^ of
phuiititt's and the intervener in respect of all thereof, a case
of adverse possession under ouster and disseisin has been made
out: See the cases already cited; also. Leach v. Hall, 95 Iowa.
0-30, G4 X. W. 790. This being true, the lapse of time was such
as tiiat when these actions were brought the bar of the statute
of limitations had long been complete.
It follows tliat in the Meis case the decree must be, and it is,
aflirmed on plaintiff's appeal, and reversed on defendant's ap-
peal. In the Luthmers case the decree is affirmed. In the
Bartman case, as the plaintiifs were granted all the relief to
which they could, in any event, be entitled, and as the defend-
ants in that case liave not appealed, the decree is affirmed.
Affirmed on plaintiff's appeal. Eeversed on defendant Meis'
appeal.
A Tiilid Tar Title cannot, as a rule, be acquired bv one tenant in
common against his cotenant: See the monographic note to Cone v.
Wood, 75 Am. St. Eep. 235-240, on who may purchase and enforce
a tax title. Consult, also, the subsequent cases of McFarlane v.
Grober, 70 Ark. 371, 91 Am. St. "Rep. 84, 69 S. W. 56; Howeli v.
Shannon, 80 Miss. 598, 92 Am. St. Rep. 609, 31 South. 965.
One Cotenant in<t]i Dififtrii^e the others: Sn]!er v. Lawrence Bros. Co.,
98 Me. 2GS, 99 Am. St. Rep. 397, 5G Atl. 90S. But see Scotch Lumber
344 American State Reports, Vol. 101. [Iowa,
Co. V. Sage, 132 Ala. 598, 90 Am. St. Rep. 932, 32 South. 607. And
if he conveys the entire property, this constitutes an ouster of his
co-owners, and the possession of the grantee may be adverse to
them: Beall v. McMenemy, 63 Neb. 70, 93 Am. St. Rep. 427, 88 N.
W. 134; Marray v. Quigley, 119 Iowa, 6, 97 Am. St. Rep. 276, 92 N.
W. 869; Sudduth v. Sumeral, 61 S. C. 276, 39 S. E. 534, 85 Am. St.
Eep. 883, and cases cited in the cross-reference note thereto.
CASES
COURT OF APPEALS
KENTUCKY.
ILLINOIS CENTRAL RAILROAD COMPANY v. MANIOK
[113 Ky. 7, 67 S. W. 40.]
EVIDENCE. — Receipts in Full are not conclusive that nothing
more is due, but may be shown to be erroneous, (p. 316.)
EVIDENCE. — A Letter from the chief engineer of the defend-
ant to plaintiff, a contractor, proposing a compromise to his claim
for extra work is admissible in evidence as an admission, to the ex-
tent that it states certain facts are shown by a remeasurement of
the work. (p. 347.)
EVIDENCE. — If Parts of Letters are introduced in evidence
by plaintiff, defendant is entitled to have the whole of the letters
read in evidence, (p. 348.)
CONTRACTS — Avoidance for Fraud or Mistake. — A condition
in a contract for work on a railroad that "the amount of work
performed under this contract shall be determined by the measure-
ments and calculations of the engineer in charge," amounts to noth-
ing more than a provision for a means of determining the amount
of the work, and either fraud or mistake of the engineer is ground
for relief on the part of the contractor, (p. 348.)
CONTRACTS — Variance by Subsequent Parol Agreement. —
Though a written contract stipulates that "no compensation for
extra work, and no compensation for any work other than the com-
pensation herein stipulated shall be paid unless ordered or agreed
to in writing," yet a recovery may be had for extra work done under
a subsequent parol agreement to pay an agreed price therefor, (p.
349.)
CONTRACTS — Variance by Parol. — Though parties to a eon-
tract stipulate that it is not to be varied except by an agreement in
writing, they may, by a subsequent agreement, not in writing,
modify it by mutual consent, and the parol contract will be enforced,
unless forbidden by the statute of frauds, (p. 349.)
CONTRACTS — Conditions. — If land furnished under an agree-
ment to furnish land necessary for "borrow pits" is not practicable
346 American State Eeports, Vol. 101. [Kentucky,
for the -vrork contracted for, the contractor is ent'tlcd to recover
money necessarily expended in procuring other land practicable for
that purpose, (p. 350.)
Lockott & Loikett, J. M. Dickinson and Pirtle & Trabuo, for
the appellants.
Ycanian & Yeaman, for tlie appellee.
^ HOBSOiST, J. Appellee, Peter Jlanion, in the spring of
the year 1899, made a contract with appellant, the Illinois Cen-
tral Eailroad Company, to raise the roadbed of the company
across the Ohio river bottoms near Henderson, Kentucky, and
brouglit these suits, which were heard together, to recover a
balance alleged to be due him for his work. It is stipuhited in
the contract tliat the engineer in charge should certify the
amount done each month, and upon his certificate ifanion should
be paid ninety p?r cent of the sum earned, the remaining ten
per cent to be paid on the final estimate. These certificates
A\ere given, and the monthly payments were made. ^^ In De-
cember, 1899, a final estimate was made, which showed a balance
due }*I;inion of $5,582.89, and for this he receipted to the com-
pany "in full of the above account.'-' His receipt in full is re-
lied on in bar of the action, as well as the five or six monthly
r(X;eipts previously given during the year. A receipt is not con-
clusive tluit nothing more is due. It may be shown to l>e erro-
neous, an<l the facts of this case are not sulUcient to bring it
within tliose cases where the account has been held stated.
The plaintiff read in evidence on the trial the following por-
tions of a letter to him from the chief engineer of the company :
"Chicago, February 10, 1900.
"Mr. Peter 'Manion, Henderson, Ky.
'"Dear feir: Pcferring to your claim for extra work on ac-
count of your contract between Henderson and Evansville, I am
advised ]>y Mr. SafTord, engineer in charge of the work, that
you were allowed 1G8,019 cubic yards according to tlie cro.<s
see; ion and extra-force account amounting to 4.815 cubic yards,
and an allewanee for extra width of 1,870 culjic vards, making
the total yardage IT 1.783 cubic yards. According to remeasure-
ment of the bank after it was put up, it was in excess of the
estimates rendered the following amounts: On the ^McClain or
north side, 4.243 cubic yards and on the Major or south side,
4,321 cubic yards.''
March, 1902.] Illinois Central R. E. Co. v. Manion. 347
The company, then, not waiving its objection to the reading
of tliis part of the letter, asked that the remainder of it be read,
which is as follows: "There is no reason why any allowance
should be made for any material put outside the regular bank
section. Taking everything into consideration, however, in
order to get a final settlement, I am willing to recommend the
additional yardage which you put in the south or Major's side.
This amounts, as stated, to 4,321 cubic yards; at 1314 cents
per cubic yard would amount to $583.33, If this will be satis-
factory, ^^ please advise. It is tlie best that I can do in the
matter. You understand that I am willing to recommend this,
but cannot give you any absolute assurance that my recommen-
dation will be approved." Tlie court then allowed the whole
letter to be road. It is insisted tl^at the letter was only a prop-
osition of compromise, and should not have been admitted.
In 1 Greenleaf on Evidence, section 192, the learned author,
afier showing that a distinction is taken between the admission
of particular facts and an oifer of a sum of money to buy peace,
adds: "But, in order to exclude distinct admissions of facts, it
must appear either tliat tliey were expressly made without pre-
judice, or, at least, that they were ma(]G under the faith of a
pending treaty, and into which the party might have been led
by the confidence of a compromise taking place. But, if the
admission be of a colbiteral or indifferent fact, such as the hand-
writing of the party, capable of easy proof by other means,, and
not connected with the merits of the cause, it is recei\able,
though made under a pending treaty. It is the condition, tacit
or expre!~-s, tliat no advantage shall 1)0 taken of the admission, it
being made with a view to, ard in furtb-oranco of, an amicable
adjustment, that operates to exclude it. But if it is an indepen-
dent admission of fact, merely because it is a fact, it will be
received; and even an offer of a sum by way of a compromise
of a claim tacitly admitted is receivable, unless accompanied
with a caution that the offer is confidential." To same effect
see Church ^^ Steele, 1 A. K. IMarsh. 328; 1 Am. & Eng. Ency.
of Law, 2d ed., 716; Evans v. Smith, 5 T. B. Mon. 30^17 Am.
Dec. 71.
The letter came from the chief agent of the company who
had charge of this department, and must be regarded its act.
In so far as it stated the facts shown by the remeasurement.
*^ it was admissible in evidence, and the court properly so held.
He also properly allowed the company to give in evidence the
348 American State Reports^ Vol. 101. [Kentucky,
remainder of the letter, as it was entitled to have the entire
document read where part was omitted, if it so desired.
The written contract between the parties contained this pro-
vision: "The said work shall be executed in strict conformity
to the specifications and such explanatory instructions as may
from time to time be given by the said chief engineer or the
engineer in charge of the work. The amount of work performed
under this contract shall be determined by the measurements
and calculations of the engineer in charge of the work, who
shall have full power to condemn and reject any and all work
which, in his opinion, does not conform to the requirements
hereof. Should any dispute arise between the parties respect-
ing the true construction or meaning of the specifications, the
same sliall be decided by the said chief engineer, and his de-
cision shall be conclusive and binding upon all parties hereto."
It is earnestly maintained for the company that the estimates
of the engineer in charge are conclusive on Manion, unless fraud-
ulent, or so grossly erroneous as to imply fraud or a failure to
exercise an honest judgment: City of Covington v. Limerick,
19 Ky. Law Rep. 330, 40 S. W. 254, and cases cited. The
contract in this case is different from that in the Limerick case.
That contract provided that the decisions of the engineer should
be final and binding on both parties. There is no such pro-
vision in the contract before us. It simply provides that the
amount of work performed under the contract shall be deter-
mined by the measurements and calculations of the engineer in
charge. This is nothing more than a stipulation for a means
of determining the amount of the work, and the determination
by the engineer is entitled ^^ to no more weight than a deter-
mination by the concurrent act of the two parties under a pro-
vision requiring the amount of work to be done to be settled in
that way. If the engineer was gnilty of fraud or made a mis-
take, it may be shown. Fraud or mistake is a ground for relief
from a settlement made by the parties themselves, and we see
no reason why the same rule should not apply to a settlement
made for them by the servant of one of them alone, unless the
contract expresslv provides otherwise: 2 Wood's Railway Law,
1141; Mcni])his etc. R. R. Co. v. ^Y\\cox, 48 Ra. St. Ifil; Rail-
way Co. V. Cuinrnings, G Ky. Law Rep. 441 ; Underwood v. Brock-
man, 4 Dana, 309, 29 Am. Dec. 407.
The contract also contains this clause: "It is expressly agreed
that no compensation for extra work and no compensation for
anv work other than the compensation herein stipulated shall
March, 1902.] Illinois Central R. E. Co. v. Manion. 349
be paid to the party of the first part, unless ordered or agreed
to in writing by the said chief engineer.'' Some of the items
sued for are for extra work not ordered or agreed to in writing
by the chief engineer, and it is insisted that for this there can
be no recovery. As to some of these items there is no dispute
in the evidence that the work was done under a contract by which
Manion was to be paid for it at an agreed price. As to others
the dispute seems to be only as to whether the extra work should
be paid for at thirteen and one-half cents a cubic yard, accord-
ing to the -written contract, or at the stipulated price claimed
by him. The company received the work, and has enjoyed the
benefits of it. Its agents in charge of its affairs superior to the
engineer in charge knew it was done.
Though the parties to a contract may stipulate that it is not
to be varied, except by an agreement in writing, they may, by
a subsequent contract not in writing, modify it by mutual con-
sent, and the parol contract will be enforced, unless ** for-
bidden by the statute of frauds. In Bishop on Contracts the
rule is thus stated : "Though the written contract has a clause
forbidding such oral alteration, and declaring that no change
in it shall be valid unless in writing, such provision docs not
become a part of the law of the land ; it is like any other agree-
ment which is superseded by a new one. So that in spite of
it an oral alteration may be validly made" : Bishop on Con-
tracts, sec. 767. "Any contract may 'be varied by the parties
before performance; for the power from the law to enter into
the bargain equally authorizes them to abrogate or modify":
Bishop on Contracts, sec. 776. See, also, Imerson v. Bridge
Co., 5 Ky. Law Rep. 685; Baum v. Covert, 62 Miss. 113; Lewis
V. Yagel, 77 Hun, 337, 28 N". Y. Supp. 833; Van Deusen v.
Blum, 18 Pick. 229, 29 Am. Dec. 582; Escott v. ^^^lite, 10 Bush,
175.
By another clause of the contract it was stipulated : '"'The ma-
terial shall be taken from such places as may be directed by the
said chief engineer or the engineer in charge of the work. Land
necessary for l>orrow pits shall be furnished by the party of
the second part (appellant), and the party of the second part
shall do all necessary track work." At one point in the work
the borrow pit from which the engineer in charge directed tlie
material to l>e taken was so inaccessible according to the ap-
pellee's proof, that it was impracticable to get it therefrom, and
he then bouglit a borrow pit from which he got the material.
The court instructed the jury that they could find for him tlie
350 American State EEroRTS, A^ol. 101. [Kentucky,
amount necessarily expended in this way if the borrow pit fur-
nished by the defendants was not practicable for the work, but
that if it was reasonably accessible, and Manion made the change
merely for his own conyenience, they should find nothing for
him on this account. This was proper. The company, by the
terms of the contract, was to furnish appellee ''land necessary
for borrow pits." Lands which could not practically be used
■•^ for borrow pits was not such as the contract contemplated.
The word ''necessary" must be given a reasonable construction,
and tlie court properly submitted the matter to tlie jury by the
instruction referred to.
It is unnecessary to notice in detail the other matters relied
on for reversal. Xone of them affect the substance of the case.
The instructions fairly submitted the issues to the jury, and
their verdict is not so against the evidence as to warrant us in
disturbing it.
Judgment affirmed.
Petition for rehearing by appellant overruled.
TJwt a Receipt may be explained or varied bv parol evidence, see
the note to Sullivan V. Lear, 11 Am. St. Kep. 393, 394; Buhvinkle v.
Cramer, 27 S. C. 376, 13 Am. St. Eep. 615, 3 S. E. 776; McKinnev v.
Ilarvie, 38 Minn. 18, 8 Am. St. Eep. 640, 35 N. W. 668; Chapel v.
Clark, 117 Mich. 638, 72 Am. St. Rep. 587, 76 N. W. 62.
Sidloitcnis Made in the Course of Negotiations for Compromise ac-
cording to Eobertson v. Blair, 56 S. C. 96, 76 Am. St. Eep. 543. 34
S. E. 11, cannot be admitted in evidence against the party making
(hem. if the effort to compromise proves abortive. But see Evans v.
Smith, 5 T. P.. ]\i:on. 363, 17 Am. Dec. 74; Briee v. Bauer, 108 N. Y.
428, 2 Am. St. Eep. 454. 5 X. E. 695; Teasley v. Bradley, 110 Ga. 497,
78 Am. St. Eep. il3, 35 S. E. 782.
SuJisr(]ite)it I'lirol Afnrcniruts to vary writings are discussed in the
monographic note to Harris v. M\irphy, 56 Am. St. Eep. 659-672.
March, 1902.] ' TmcE v. Siiipton. 351
TRICE V. SIIIPTON".
[113 Ky. 102, 67 S. W. 377.]
WILLS — Revocation— Fraud Preventing Destruction of Will.—
Fraud on the part of the testator's wife, who is sole devisee under
his will, in falsely representing to him that it has been destroyed,
whereby he is prevented from destroying it or executing another, is
not ground for the revocation of such will. (p. 352.)
WILLS — Revocation. — Courts cannot substitute for the plain
requirement of the statute the supposed desire, intention, or even
unaccomplished attempt of a testator to destroy or revoke his will,
(p. 353.)
Lockett & Lockett and J. W. Malian, for the appellants.
J. W. Bourland and Bourland & Henson, for the appellees.
*o^ DU RELLE, J. A paper propounded as the last will of
S. D. Trice, wherehy he gave all his property to his wife, was
duly probated in 189 G. The widow subsequently remarried and
died, and after her death, and some three years after the pro-
bate, an appeal was taken from the judgment of probate by
Trice's heirs. The grounds of the contest were lack of mental
capacity and undue influence, and tlie jury seems to have been
properly instructed on these questions. They found in favor of
the will.
Evidence was introduced that, a short time before the tes-
tator died, he said that he had made a will, and his wife said
that that will was destroyed ; that he then stated that he wanted
his property to go to his wife, with remainder to his family;
that he had spoken of his will as having been destroyed. An-
other witness testified that, some three ^^^ years before his
death, she asked him if he had made a will, and he replied that
he had no will; that he had made one, but it was destroyed;
and his wife confirmed the statement tliat it was destroyed.
Upon this testimony an instruction was asked as follows : "Even
if the jury believe from the evidence that tlie paper in ques-
tion was freely executed by S. D.. Trice, yet if tliey further be-
lieve from the evidence that he afterward wished and intended
to destroy said paper, and that his wife, to prevent it, repre-
sented to him that said paper wa-s destroyed, and, he relying
upon that representation, was prevented from destroying said
paper or making anotlier as his will, this is such undue influence
and fraud as renders said paper invalid, and the jury will find
said paper not to be his will." It is argued wit:h considerable
352 American State Reports^ Vol. 101. [Kentucky,
force that this evidence tended to show a fraud upon the testa-
tor, and that by the direct fraud of his wife he was made to be-
lieve his will had been destroyed, and therel>y prevented from
revoking it by himself destroying it, as he desired and intended;
that this fraud can, in probate proceedings, be shown as the
basis for a verdict setting aside the will on the ground of fraud,
on behalf of the heirs at law. On the other hand, it may be
urged that such statements are sometimes falsely made by tes-
tators to avoid annoyance from their kindred, and that, even if
the statements of which testimony has been given be admitted
to show a desire for the destruction or revocation of his will,
it does not at all follow that if he had known the will was still
in existence he would have actually destroyed or revoked it.
But we do not think there was any question to submit to the
jury. Tlie statute (Kentucky Stats., sec. 4833) seems directly
to provide the mode whereby a will may be revoked, in whole or
in part, and to peremptorily prohibit any other mode of ac-
complishing this purpose: ■^'*'* "Ko will or codicil, or any part
thereof, shall be revoked, unless under the preceding section,
or by a subsequent will or codicil, or by some writing declaring
an intention to revoke the same, and executed in the manner in
which a will is required to be executed, or by the testator, or
some person in his presence, and by his direction, cutting, tear-
ing, burning, obliterating, canceling or destroying the same, or
the signature thereto, with the intent to revoke." In Tocbbe
v. Williams, 80 Ky. GG5, 4 Ky. Law Eop. 5(33, in an opinion by
Chief Justice Hargis, it was said, referring to section 10, chapter
113 of the General Statutes, which is substantially re-enacted
in the section we have quoted : "Evidence of verbal statements
made by the testator, after making his will according to the
forms of law, to the effect that he has not made a will do not
constitute a revocation, and possess but little value, and when
permitted to go to the jury they should be instructed that such
statements do not tend to prove revocation, and furnish no
light in construing the written acts of the testator." In Gains
V. Gains, 2 A. K. Marsh. 190, 12 Am. Dec. 375, a case was un-
mistakably made out of the forcible prevention by the devisee
of the destruction of a will by the testator. The devisee
snatched it from bis hand and forcibly retained it after the
testator had sent for it with the announced desire to destroy
it. It is true that, in that case the court held the testator's
mind was at the time so impaired by disease as to render him
incapable of acting ethciently for the purpose of revocation.
March, 1902.] Trice v. Shipton. 353
But the court said, in an opinion by Chief Justice Boyle : "But,
admitting the competency of the testator, at the time, to have
revoked his will, and that he was prevented from doing so by the
conduct of the defendant in error, we should still think that
the will was not thereby revoked. The act concerning wills,
after having prescribed the manner in which ^^^ a will shall
be made, provides 'that no devise, so made, or any clause thereof,
shall be revocable but by the testator's or testatrix's destroying,
canceling or obliterating the same, or causing it to be done in
his or her presence, or by a subsequent will, codicil, or declara-
tion in writing, made as aforesaid.' None of these acts were
done, and we cannot, under any circumstances, substitute the
intention to do the act for the act itself. Construction is ad-
missible only where there is ambiguity; and there is no am-
biguity in the provision referred to. To substitute the inten-
tion to do the act, instead of the act itself, without which the
statute expressly declares the will shall not be revocable, would
be changing the law, not expounding it. A devisee who, by
fraud or force, prevents the revocation of a will, may, in a court
of equity, be considered a trustee for tliose who would be en-
titled to the estate, in case it were revoked; but the question
cannot with propriety be made in a case of this kind, where
the application is to admit the will to record." In Eunkle v.
Gates, 11 Ind. 95, a simikir question was presented, with the
same result, the fraud in that case having been confessed by the
devisee : See, also, Jarmin on Wills, c. 7, sec. 2.
The law has pointed out the mode in which wills may be
revoked. It has, in effect, forl)idden any mode of revocation
save that permitted by the statute. The courts cannot sub-
stitute for the plain requirement of the statute the supposed
desire, intention, or even the unaccomplislied attempt, of the
testator to destroy his will. If a testator on his deatlibed
should send for his will for the avowed purpose of its destruc-
tion, and should die before it reached him, or even with the
instrument in his hands for that purpose, it could hardly be
maintained that a revocation had been accomplished, witlnn the
meaning of the statute. To hold ^^*^ that an expressed inten-
tion to destroy a will, or an expressed belief that it had been
destroyed — and that such intention or belief can be proven by
statements made, very possibly, for the purjx)se of misleading
the kindred of the testator — could take the place of the formal
and definite revocation provided for by the law, would violate
Am. St. Rep. Vol. 101—23
354 American State Reports, A'ol. 101. [Kentucky,
the plain letter and siDirit of the statute and create an open door
for fraud.
The testimony objected to does not seem to be such as could
have operated prejudicially. For the reasons giver^ the judg-
ment is affirmed.
Decisions involving questions similar to that passed upon in the
principal case will be found in the monographic notes to Giddings v.
Giddings, 48 Am. St. Kep. 198, 199; Graham v. Burch, 28 Am. St. Kep.
347.
HOME INSURAXCE COMPANY OF NEW YORK v. KOOB.
[113 Ky. 360, 68 S. W. 453.]
INSUEANCE— Waiver of Proof of Loss.— Denial of liability
by an insurer for a loss by fire constitutes a waiver of proof of such
loss. (p. 355.)
INSURANCE, FIRE— Condition Against Other Insurance —
Owner and Mortgagee. — If an owner of property accepts a policy of
fire insurance thereon, containing a condition that it shall be void if
other insurance is taken on the insured property, the fact that the
mortgagee of such property subsequently takes other insurance on
his interest does not avoid the owner's insurance, especially when
neither knew that insurance had been procured by the other,
(p. 357.)
INSURANCE, FIRE — Misrepresentation— Burden of Proof. —
Tn the absence of fraudulent iiitt'ut, the burden of proof is on an
insurer to show that a misrepresentation by the insured as to the
amount lie owed on a mortgage on tlie property insured, was material
to the risk. (p. 359.)
INSURANCE, FIRE— Other Insurance— Contribution.— If an
owner and a mortgagee of the same i)r(»perty have procured insurance
on tlieir separate interests therein, and the owner seeks to recover
on his policy, the defendant insurer is not entitled to contribution
against the insurer of the mortgagee's interest, (p. 360.)
I. T. Wooflson, for tlie appellant.
S. E. Sloss, "W. W. Thum and F. Forcht, for the appellees.
,".<;.'{ ()*]>].]AR, J. Aj)pellee Koob owned a double frame
lioii.=e on Eombard street, Louisville. lie mortgaged it in 1894
to the Kentucky Citizens' Building and Loan Association
to secure a "'***•* loan of seven hundred dollars, payable in
monthly installments, on the familiar building association plan.
xVt tlie same time be contracted with appellant for an insurance
against loss or damage by fire to the Ijuilding to the extent of
eight hundred dollars. The policy was indorsed, "Loss, if any,
May, 1902.] Home Insurance Co. v. Koob. 355.
payable to the Kentucky Citizens' Building and Loan Associa-
tion, mortgagee, as its interest may appear," etc. The bond
from Koob and wife to the building association contained this
stipulation : "Xow, if we pay promptly the monthly interest on
said sum of seven hundred dollars, and the m.onthly premiums
of three dollars and fifty cents offered by us for said loan, and
the monthly payments on said shares of stock, and any fines as-
sessed under the rule of said association, and the taxes accruing
on the lot of land described in the mortgage securing this obli-
gation, and the premiums necessary to keep the improvements
on said lot insured in such sum as said association may require
(not exceeding seven hundred dollars) until the said stock be-
comes fully paid in and of the value of one hundred dollars per
share, then it is understood that upon the surrender of said stock
to said association this note shall be deemed fully paid and can-
celed." In March, 1899, the policy of insurance above named
expired. In the meantime the building association had made
a deed of assignment to appellee W. E. Logan in trust for all
its creditors, transferring to him under the deed the note and
mortgage executed by Koob. Logan notified Koob of the ex-
piration of the policy, and requested reinsurance. To this
notice Koob failed to respond, and Logan, as assignee of the
mortgagee, and without the knowledge of Koob, effected an in-
surance with the appellee. Agricultural Insurance Company, in-
suring the mortgagee's interest against loss or damage to this
property by fire in the sum of five hundred dollars. The pre-
mium for this insurance was paid by Logan, assignee, and
charged to ^^^ Koob. About the same time, at the instance of
appellant's local agent, Lang, Koob took this insurance on the
property in a policy for eleven hundred dollars. This was done
without the knowledge of Logan. Xeither insurance company
knew of or consented to the other's insurance. The property
was damaged by fire during the existence of these policies, and
tlie loss fixed by the appraisers at five hundred and forty-nine
dollars and sixty-eight cents. Koob has sued the appellant in-
surance company on the policy issued to him, and Logan, as-
signee, has also sued appellant (and Koob), attaching the siim
that may be owing Koob under the policy. The defenses inter-
posed were : 1. It was claimed by appellant that under certain
terms of its policy, hereinafter particularly noticed, the exist-
ence of the Agricultural Company's policy on this property,
witliout appellant's consent, voided the policy sued on; 3. That
356 American State Keports^ Vol. 101. [Kentucky,
Koob falsely and fraudulently misrepresented to appellant the
extent of tlie mortgage lien upon the property, which misrepre-
sentations are claimed to have been material to the risk; 3.
That, in any event, if liable on the policy at all, under a cer-
tain clause of the contract its liability was limited to a sum rep-
resented by the ratio borne by its policy to the whole of the in-
surance in existence upon the building.
A preliminary question was made by appellant that Koob
had not sufficiently complied with the terms of his policy in fur-
nishing proofs of loss as required. In a letter to Koob from
appellant's adjuster, dated January 2G, 1900, before the suit, it
was stated : "The Home Insurance Company hereby gives notice
that any and all liability for said loss is denied.'^ In the an-
swer of appellant it likewise denies all liability for the loss.
These constituted a waiver by the insurer of proofs of loss : Lan-
cashire Ins. Co. V. Monroe, 101 Ky. 12, 19 Ky. Law Ecp. 204,
39 S. W. 434; ^« Phoenix Ins. Co. v. Spiers, 87 Ky. 285, 10
Ky. Law I^op. 254, 8 S. W. 453; Orient Ins. Co. v.'ciark. 10
Ky. Law Kep. 1066, 59 S. W. 863; Phoenix Ins. Co. v. Gibbons,
23 Ky. Law Rep. 1130, 64 S. W. 909. One of the conditions of
the policy sued on was that, "If now or hereafter tlicre be other
insurance on any property here1)y insured, this policy shall be
void, unless otherwise provided by agreement indorsed hereon."
Do the two policies constitute what is termed "otlior insurance''?
The manifest purpose of this and similar provisions in llie poli-
cies of insurance, as well as of the law in favoring tlicm, is to
prevent the temptations arising out of overinsurance — tempta-
tion to tlie insured to either Imrn his building for the gain or
to neglect its care. If the interest of the insured ])e a life es-
tate in the property, it could not matter to him — certainly could
not profit him— wlu'ther tlie remaindermen were or not insured,
if he had not ample insurance to indemnify his individual loss:
Franklin etc. Ins. Co. v. Drake, 2 B. Mon. 47. Therefore, it
was held in the Kentuckv case just cited that, where the in-
surance was ind('pen<lently effected upon distinctive interests,
it did not constitute ''double insurance," within the meaning of
such clauses. Here, though, it is said that the insurance ef-
fected liv the mortgagee was indirectly for the owner's Ijenefit;
for, in event of loss of the building by tire, the nioitgagee's in-
surance would, if suflicient, extinguish the mortgagor's debt.
That might or miglit not be true. But in this case it may be ac-
cepted as true. Still we must construe ajipellant's liability on
May, 1902.] Home Insurance Co. v. Koob. 357
the terms of its contract, or by the manifest "justice" of the
case. If the latter be invoked, then it seems a sufficient re-
sponse that Koob and Logan were each ignorant of the insur-
ance effected by the other ; neither had the legal right to control
the act of the other, nor to prevent the issuance '^^"^ of the re-
spective policies to the other. Therefore, the idea which lies
at the bottom of the doctrine disfavoring double insurance, to
wit, to prevent the overbalancing self-interest in the insured to
destroy or neglect his building, is wanting in this case ; for, un-
less he knew of the other insurance, and contemplated its possi-
ble advantage to him, it could not have influenced his action.
But the terms of the policy are, after all, the safest, as they are
the legal method of determining the insurer's liability. The
contract provides, "If now or hereafter there be other insurance
on any property hereby insured, this policy shall be void." It
is too well settled to require either argument or citation of au-
thority that an insurance effected by one having an insurable
interest in the property will not inure to others having also an
interest in the property, and not named in the contract, whether
they be joint tenants, remaindermen, tenants, or lessors. It
therefore follows that the thing insured is not the property, but
the interest or estate, of the insured therein. We must, then,
construe the term in the policy, "any property hereby insured,"
to mean the insured's interest or title in the property described.
3 Joyce on Insurance, section 2470, thus states the rule : "The
general rule that different persons, each having a different inter-
est in property, may insure that interest, also prevails where dif-
ferent policies are effected by the mortgagor and mortgagee upon
the property. The mortgagor may insure the property to cover
his interest, and the mortgagee may likewise insure his interest
in the property, and it will not be within the meaning of the
clause as to other insurance." It is further argued that in this
case the mortgagor, Koob, authorized his mortgagee, the build-
ing association, to effect the insurance, and therefore the act of
the mortgagee was the act of the mortgagor ^^'^ in procuring
the Agricultural company policy. The agreement of the mort-
gagor was that he would keep the premises insured to the extent,
at least, of the mortgage debt. In addition to the language al-
ready quoted from Koob's bond is this statement foimd therein :
"But if we fail to pay promptly when due and payable the said
taxes and insurance premiums, .... then, at the option of the
said association, the whole indebtedness evidenced by this obli-
358 American State Keports^ Yol. 101. [Kentucky,
gation (including any taxes and insurance premiums due or
paid by said association) shall at once become and be due and
collectible." Xo express authority is here given the association
to contract for* insurance upon this property. It may be in-
ferred, though, that upon default by the mortgagor to keep the
premises insured to at least the balance of the mortgage debt,
with a clause protecting the mortgage therein, the mortgagee
was authorized to effect such insurance on the o\^Tier's behalf —
that is, an insurance of the OA\Tier's title and property to the
amount of seven hundred dollars (the sum required by the
bond) — with loss payable to the mortgagee as its interest might
appear. But the mortgagee did not do this. On the contrary,
it procured an indemnity to itself from loss by fire on its inter-
est in this property. That its assignee charged or attempted to
hold the mortgagor liable for the premium for this insurance
is not material. The insurance effected by the mortgagee was
exactly what he liad the right to do without a contract with or
the consent of the owner. It was inde])en(lent of that part of
the agreement with the owner quoted aljove. It shows on its
face that it was, and the assignee so testified. We conclude
tliat there was not ''otlier insurance on the property" of appellee
Ivoob within the meaning of that term as construed in law.
aoi> 'pjjg j^pgp Q^ g^^ Insurance Office v. Yarble. 103 Ky. 75<S,
20 Ky. Law Kep. 556, 46 S. W. 480, 41 I.. E. A. 792, is relied on
by appellant as sustaining a contrary view. In that case it must
])e noted that the language of the policy is materially different
from tbe one at bar. In the Yarble case it was : "In case of any
other insurance upon the property hereby insured, tlien this com-
pany shall not b.e liable under this policy for a greater portion
of any loss sustained than the sum hereby insured l)ears to the
whole amount of insurance on said property issued to or held
])v any partv or parties having an insura])le interest therein."
This court held that the "insurance companies had the right to
place in their policies provisions defining and limiting their sev-
eral ]ia])ilitic>"' ; tltat they, in that policy, "by express and un-
mistakable lan_i:uage, limited their liability so that they would
not be required to pay a greater portion of any loss sustained
than the sum they respectively insured l)ore to the whole amount
on tlie property." The insurance held by any party having an
insuralile intr-rest in the property was, therefore, under the terms
of tho policy, required to lie taken into account. To the same
effect, and u[)on a similar policy to the one construed in the Yar-
May, 1902.] Home Insurance Co. v. Koob. 359
ble case is Hartford Fire Ins. Co. v. Williams, 11 C. C. A. 503,
63 Fed. 928. The case of Home Ins. Co. v. Baltimore Ware-
house Co., 93 U. S. 527, 23 L. ed. 868, was an instance where
policies were taken out by the warehousemen "for their own and
for the owner's benefit." Other policies were taken out on the
same goods by the owners. It was held that the policies should
bear ratably the loss. That case is not in conflict with the views
herein expressed. The other cases cited by appellant (Insur-
ance Co. V. Coons, 14 Ky. Law Rep. 110, and Baer v. Phoenix
Ins. Co., 4 Bush, 242) ^''^ were cases where all the policies were
issued to the same party.
Pending the negotiation between Koob and appellant's agent
for this insurance, the fact of the mortgage on the property was
discussed. Appellant charges — and upon that rests one of its
defenses — that Koob fraudulently and falsely misrepresented the
amount owing on the mortgage debt, and that the misrepresenta-
tion was material. The burden upon this plea was, of course,
on appellant. To sustain it, its local agent, Lang, was intro-
duced as its witness. He testified that Koob told him that "he
was paying off his mortgage"; that it was to some building asso-
ciation; that it was then a balance of one hundred dollars, one
hundred and fifty dollars or two hundred dollars. His testi-
mony shows his memory to be very unsatisfactory as to what
actually occurred, further than that Koob told him there was
some balance, from one hundred dollars to two hundred dollars,
owing on the mortgage to the building association. Koob testi-
fied that he told Lang of the mortgage; that he had been paying
it off, but had stopped; that he thought he would be owing the
association two hundred dollars or three hundred dollars or four
hundred dollars balance, "with interest added." His memory
does not appear to be much better than Lang's. His testimony
indicates him to be an illiterate, ignorant man. In fact, we
may easily see that he did not know what balance he was owing
on his mortgage. His payment "on dues" amounted then to
one hundred and ninety-five dollars. He doubtless thought, as
many persons have, that this sum was to be credited on his debt.
If tliis had been so, the debt would have been three hundred and
fifty-five dollars. There is nothing to indicate that he intended
to deceive the company's agent as to the amount of this debt.
In this state tliese and similar statements are not warranties
but are representations only. And under section ()o9 of tlio
Kentucky Statutes it is also provided : "Xor shall any misrepre-
360 American State Eeports^ Vol, 101. [Kentucky,
semtation, unless material or fraudulent, prevent a recovery
^'^^ on the policy," A comparison of the testimony of these two
witnesses shows an entire absence of fraudulent motive. It also
shows that Koob was admittedly unable to, and did not pretend
to, give accurately the amount owing on the mortgage. The
very fact that he is alleged to have represented it as running
from one hundred dollars, one hundred and fifty dollars, to two
hundred dollars was notice to his auditor that he could not and
did not pretend to give tlie exact amount of balance owing. But
we are authorized in adopting the estimate of those two wit-
nesses, placed upon them by their chancellor, which was under
the rule as to burden, to accept appellee Koob's statements, and
the maximum sum stated by him is so near the true sum, five
hundred and eighty-two dollars and fourteen cents, as that the
difference, under the circumstances, cannot be held to have been
material to this risk: Light v. Greenwich Ins. Co., 105 Tenn.
480, 58 S. W. 851. It follows from what has been said that, as
there was not "otlier insurance," within the meaning of the law,
upon appellee Koob's property, appellant was not entitled to pro-
rate the loss with the policy issued to the mortgagee on his inde-
pendent interest. Nor was appellant entitled to maintain a cross-
petition against the Agricultural Insurance Company for contri-
bution. In denying a similar attempt in London etc. Ins. Co,
V. Turnbull, 86 Ky. 236, 9 Ky. Law Eep. 514, 5 S. W. 512, this
court held that the utmost of that clause was a defense to the
company insuring against the pro rata of the loss represented
by the other policies, ''and whether they [the insured] ever re-
covered the pro rata due by the other companies was a matter
about which the appellant had no concern, and it should not
have been allowed to meddle with it."
Judgment aHirmcd, with damages.
Procuring Additional Insunince in violation of the express torma
of the first policy avoids it: Queen Ins. Co. v. Young, 86 Ala. 424,
n Am. St. Ilop. 51, 5 South. 116; O'Leary v. Merchants' etc. Ins. Co.,
100 Iowa, 173, 62 Am. St. Rep. 555, 66 N. W. 175, 69 N. W. 420. As
to whetlier additional insurance obtained by one mortgagor violates
a condition against "additional insurance," see Gillett v. Liverpool
etc. Ins. Co., 73 Wis. 203, 39 Am. St. Rep. 784, 41 N. W. 78. It seems
that a policy to a mortgagee is not avoided by subsequent insurance
by the mortgagor: Note to Thomas v. Builders' etc. Ins. Co., 20
Am. Rep. 321. As to what is double insurance, see Copeland v.
Phoenix Ins. Co., 96 Ala. G15, 38 Am. St. Rep. 134, 11 South. 746;
Clarke v. Western Assur. Co., 146 Pa. St. 561, 28 Am. St. Rep. 821,
23 Atl. 248, 15 L. R. A. 821.
May, 1902.] City of Lexington v. Thompson. 361
CITY OF LEXIXGTOX v. THOMPSON".
[113 Ky. 540, 68 S. W. 477.]
CONSTITUTIONAL LAW —Right to Local Self-govern-
ment.— Municipal corporations have a right to local self-government,
and it is not within the power of the legislature to permanently
fill by appointment and fix the compensation of the local or munici-
pal offices established by law for purely local purposes, (p. 3&3.)
CONSTITUTIONAL LAW. — Laws may be Declared Invalid,
although not repugnant to any expressed restriction contained in the
state constitution, (p. 367.)
CONSTITUTIONAL LAW —State Interference with Munici-
pal Government. — A statute fixing the compensation to be allowed
the officers and members of a municipal fire department, created for
purely local purposes, is void as violative of the right of the munici-
pality to govern and control its purely local affairs, (p. 372.)
"W. S. Bronston, city solicitor, for the appellant.
Kinkead & Miller, for the appellee.
^^^ DU EELLE, J. By the fourth section of an act amend-
ing the act for the government of cities of the second class, ap-
proved March 15, 1900 (Acts 1900, p. 15), it was provided : "The
said fire department shall consist of one chief, whose salary shall
not be less than one hundred and fifty dollars per month; the
engineer's salary shall be eighty dollars per month; the electri-
cian's salary shall be seventy dollars per month, and the ordi-
nary fireman's salary shall be sixty-five dollars per month."
The appellee, Thompson, brought suit against the appellant, the
city of Lexington, a city of the second class, alleging that he was
a resident of that city, and employed by it as an ordinary fire-
man, having been appointed by the board of police and fire com-
missioners; that prior to the passage of the act his salary as
fireman was fifty dollars per month, and by that act was in-
creased to sixty-five dollars per month; that he continued to
serve as ordinary fireman up to July 22, 1901, wlien he resigned ;
that from time to time he made demand upon the city for the
increase of salary ])rovided for by the act at the rate of fifteen
dollars per mouth, wliich was refused. His prayer was for judg-
ment for the difference between the salary paid him and that
fixed by the act during the period from ]\Iarch 15, 1900, to
July 22, 1901, aggregating two himdred and forty-three dollars
and seventy-five cents. A domurrer to the petition was filed and
overruled. Tlie city stood by its demurrer, and judgment was
362 American State Eeports, Vol. 101. [Kentucky,
rendered against it. The ground of the demurrer is that
'^^^ the act is violative of the riglit of local self-government by
the city in a matter over which the municipality has exclusive
control in its private or corporate capacity, and that the act is
therefore void.
For appellee it is contended that the act docs not violate any
provision of the constitution of the state, and therefore cannot
be declared void because it is, or is supposed to be, in violation
of the spirit which may be supposed to pervade that instrument.
Mr. Cooloy is quoted in support of this proposition : "If the
courts are not at liberty to declare statutes void because of their
apparent injustice or impolicy, neither can they do so because
they appear to the minds of the judges to violate fundamental
principles of republican government, unless it shall be found that
those principles are placed beyond legislative encroachment by
the constitution. The principles of republican government are
not a set of inflexible rules, vital and active in the constitu-
tion, though unexpressed, .... nor are courts at liberty to de-
clare an act void because, in their opinion, it is o])posed to a spirit
supposed to pervade the constitution, but not expressed in
words": Cooley's Constitutional Limitations, 5th ed., pp. 202-
204. Xumerous other authorities are cited in support of the
doctrine thus laid down, and among them the opinion of Chief
Justice I\obortson in Griswold v. ITepl)urn, 2 Duvall, 21. where,
after discussing the di (Terence ])ctween the fed(>ral constitution
as a grant of power and the state constitution as a written limi-
tation \\])cin the powers of the legislative organ of the people, it
is said : ''T^ut tlie same reason being inapplieal)le to state legisla-
tion of doubtful compatibilitv with a state constitution, proper
deference to the legislative department should preponderate in
favor of the constitutionality of its acts, and re(juir('S the judi-
cial department to recognize ^'*^ tlieni as laws, unh^ss it sliall
be clearly satisfied that tbev are not. Wlioncvor a jurist in-
quires whf'tlier a state statute is consistent witli tlie state con-
stitution, he looks into that constitution, not for a grant, hut
only for some limitation of the powers inliercnt in the poo])le*s
legislative organ so far as not forl)idden by their organic law."
These gt'neral principles may be freelv conceded. It is also
urged that, as sj'.id l)y tlie supreme court in T^nitod States v. Bal-
timore vie. \l. K. Co., 17 Wall. 329, 21 L. ed. 597. a municipal
corporation is not only a re])resontative of the state, ''but is a
portion of its governmental ])0\ver. It is one of its creatures,
May, 1902.] City of Lexington v. Thompson. 363
made for a specific purpose, to exercise within a limited sphere
the powers of the state. The state may withdraw these local
powers of government at pleasure, and may, through its legis-
lature or other appointed channels, govern the local territory as
it governs the state at large. It may enlarge or contract its pow-
ers or destroy its existence." These general statements of the
legislative power over municipal affairs are always to be read in
the light of the state of fact to which they are applied by the
courts which give them utterance. Unless so read, they are apt,
at times, to be misleading. In fact, the very authorities which
thus state the general rule state also the limitations to be placed
upon it. Speaking of the limitation upon legislative power,
Judge Cooley says: "It does not follow, however, that in every
case the courts, before they can set aside the law as invalid, must
be able to find in the constitution some specific inhibition which
has been disregarded, or some express command which has been
disobeyed. Prohibitions are only important where they are in
the nature of exceptions to the general grant or power; and, if
the authority to do an act has not been granted by ^"*^ the sov-
ereignty to its representatives, it cannot be necessary to pro-
hibit its being done'' : Cooley's Constitutional Limitations, oth
ed., p. 203. So, Von Hoist (Von Hoist's Constitutional Law,
271), after stating the general rule that the legislative power
of the state legislatures is unlimited so far as no limits are set
to it by the federal or state constitution, proceeds : "This does
not mean, however, that these restrictions must always be ex-
pressed in explicit words. As it is generally admitted that the
factors of the federal government have certain implied powers,
so it has never been disputed that the state legislatures are sub-
ject to 'implied restrictions'; that is. restrictions which must be
deduced from certain provisions of the federal or state consti-
tutions, or that arise from the political nature of the Union,
from the genius of American piiblic institutions." And in
Mechem on Public Officers, section 123, it is said: "Indeed, this
right of local self-government, as it has been briefly termed, is
held to be an established feature and incident of our political
system, and it is not within the power of the legislature of a
state to permanently fill by appointment the local offices estab-
lished by law for purely local purposes": See, also. Cincinnati
etc. P. P. Co. V. Clinton Co. Commrs., 1 Ohio St. 77. Said Mr.
Edward Bates, in his argument in Hamilton v. St. T.ouis Co.
Ct., 15 ]\Io. 13, cited with approval in Cooloy's Ctni.-Mtnlional
364 American State Reports^ Vol. 101. [Kentucky,
Limitations, 5th ed., p. 49, a constitution is "not the begin-
ning of a coiuniunity, nor the origin of private rights. It is
not the fountain of laws, nor the incipient state of government.
It is not the cause, but consequence, of personal and political
freedom. It grants no rights to the people, but is the creature
of their power, the instrument of their convenience, designed
for their protection in the enjoyment of the rights and powers
which they possessed before the constitution was made. It is
^**'' but the form and framework of the political government,
and necessarily based upon the pre-existing condition of laws,
rights, habits, and modes of thouglit A written constitu-
tion is, in every instance, a limitation upon the powers of gov-
ernment in the hands of agents." And Mr. Webster said : "Writ-
ten constitutions sanctify and confirm great principles, but the
latter are prior in existence to the former.'^ A municipality is
a state agency for governmental purposes. It exercises political
governmental powers delegated by the state. As to such pow-
ers, and as to the duties which attach to their exercise in the
administration of justice and the preservation of the public
peace, it is imperium in imperio; a part of the governmental
machinery of the commonwealth. Therefore, its charter and
legislative acts regulating the use of state property held by it
did not constitute contracts within the meaning of the constitu-
tional provision. Its political powers are not vested rights as
against the state. As well said by i\Ir. ]\IcQuillin in a recent
article upon tbe sul)ject (34 Am. Law Ueview, p. 50G) : "It is
thus manifest that in matters of pul)lic concern, such as relate
to the perforiiiance of functions by the city as tiie agent of the
state, the legislature is not limited to conferring a discretionary
power, but may exercise authority where the local ofTicers or
agencies neglect or refuse to discliarge their pul)lic dutv in pro-
viding for tiie public needs of the locality, or in voting or levv-
ing the proper taxes for public piwposes. As to duties which
the people in the several localities owe to the state at large, Ihev
cannot be allowed a discretionary authority to perform them or
not, as tliey may choose, for such authority would be wholly in-
consistent with anything like regular and uniform government
of the state."
54,s 'pj,^, conceded legislative control over the exercise of these
governmental functions has furnished the subject of numerous
adjudications. A\'hat constitutional limitations, either express
or implied, existed upon the exercise of this legislative control
May, 1902.] City of Lexington v. Thompson. 365
it is not necessary, nor is it our purpose, in this case to deter-
mine. But a municipal corporation is not merely a public
agency of the state. Its governmental functions are not all the
functions which it possesses or exercises. It is, in part, a cor-
poration possessed of private franchises and rights, which it may
exercise for its private, corporate advantage, for the benefit of
the community, as distinct from the state government. It may
hold and manage property, not for the benefit of the state, but
to supply local needs and conveniences; and in respect thereto
it acts as a private corporation, and in that capacity may sue
and be sued. "With respect to its private or proprietary rights
and interests," it is entitled to the protection of the constitu-
tion, like other corporations : City of New Orleans v. New Or-
leans Waterworks Co., 143 U. S. 79, 12 Sup. Ct. Eep. 142, 35
L. ed. 943. Assumincr that as to the ffovemmental functions of
a municipality the contention of appellee is true to its broadest
extent, and that what the legislature gives to the municipality
by its act of incorporation it may alter or destroy at pleasure,
it docs not at all follow that the rights and privileges of the lo-
cal community, which become vested in the corporate entity cre-
ated by the legislature for the benefit of the community, are
likewise subject to the legislative control. The legislature can-
not take away from the community rights or property which ex-
isted or were acquired without the aid of legislation. A munici-
pality has a dual character. In its character as a state agency
it exercises governmental, political, public and administrative
powers and duties. In ^^^ its capacity as a private corporation
it exercises rights and powers inherent in the people of the com-
munity, which have never been surrendered to any department
of the government, and which are property rights within tlie
protection of the constitution. Among the earliest courts to
recognize this dual capacity of municipalities are those of Ken-
tucky. The question arose upon a claim by the city of Louis-
ville to exemption from state taxation. In that case (City of
Louisville v. Commonwealth, 1 Duvall, 297, 85 Am. Dec. 624)
this court, through Judge Kobertson, said : "But a municipal
corporation, like a state, a county, or the city of Louisville, is
much more than a person. While nominally a person, it is
vitally a political power; and each, in its prescribed sphere, is
^imperium in imperio.' All are constituent elements of one
total sovereignty. The city of Louisville, to the extent of the
jurisdiction delegated to it by its charter, is but an effiuence from
366 American State Reports, Vol. 101. [Kentucky,
tlie sovereignty of Kentucky, governs for Kentucky, and its au-
tliorized legislation and local administration of law are legisla-
tion and administration by Kentucky through the agency of that
municipality. The tax law of Kentucky constructively applies
to persons only, and not at all to political bodies exercising in
different degrees the sovereignty of the state And if,
notwithstanding the specified exceptions, the public property of
the state and counties is exempt, the same reason exempts the
public property of Louisville used for carrying on its municipal
government. But, so far as any of its property may be used,
not for that purpose, but only for the convenience or profit of its
citizens individually or collectively, this it owns and uses as a
private corporation, and, like the property of all such corpora-
tions not expressly exempted, it is a legal subject of assessment
for taxation. The more precise and distinctive test for classi-
fication ^^^ is this: "\Aniatever property, such as courthouse,
prison, and the like, which became necessary or u.-eful to the
administration of tlie municipal government, and is devoted to
that use, is exempt from state taxation, but whatever is not so
used, but is owned and used by Louisville in its social or com-
mercial caj>acity as a private corporation, and for its own profit,
such as vacant lots, market-houses, fire-engines, and the like, is
su])ject to taxation." ]\Ir. Dillon thus states the distinction :
"The administration of justice, the preservation of public peace,
and tlio like, although confided to local agencies, are essential
matters of public concern; while the enforcement of niunicijial
by-laws proper, the esta1)lishment of gasworks and waterworks,
the construction of sewers, and the like, are matters whicli per-
tain to the municipality as distinguished from the state at
large": Dillon on ^Municipal Corporations, sec. 58. The ^lassa-
chusett,^ court, recognizing the waterworks, markets, hospitals,
cemeteries, libraries, and the system of parks of Boston as estab-
lished ''for the benefit of the public," declares them to be 'iicld
more like the property of a ])rivate cor]ioration."' and therefore
protected from legislative interference: Mt. Hope Cemetery v.
City of r.oston. loH Mass. 51!), 35 Am. St. Eep. 515, 33 N. E.
095. And again, in Dillon on ^huiicipal Corporations, section
12a, it is said: "In many of its more im])ortant aspects, a
modern American city is not so much a miniature state as it is
a business corporation, its business being to wisely administer
the local affairs and economically expend the revenue of an in-
corporated community. As we learn this lesson, and apply busi-
May, 1902.] City of Lexington v. Thompson. 367
ness methods to the scheme of municipal government and the
conduct of municipal affairs, w^ are on the right road to better
and more satisfactory results." In Nebraska the legislature
passed an act establishing a ^^^ board of police and fire com-
missioners, to he appointed by the governor, to whom there was
given all powers and duties connected with the appointment,
removal, and discipline of the members of the police and fire
departments. It was there held (State v. Moores, 55 Neb. 480,
76 N. W. 175, 41 L, E. A. 624, overruling a former decision)
that the act was void. Said the court: "It is true that the
state constitution is not a grant of legislative power, and the
law-making body may legislate upon any subject not inhibited
by the fundamental law; but it by no means follows from this
that the legislature is free to pass laws upon any subject un-
less in express terms prohibited by the constitution. The in-
hibition on the power of the legislature may be by implication
as well as by expression. Laws may be and have been declared
invalid, although not repugnant to any express restriction con-
tained in the fundamental law." To the same effect, see Eath-
bone V. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 L. E. A. 408.
The same conclusion was reached as to a similar law of Indiana
in the cases of State v. Denny, 118 Ind. 382, 21 X. E. 252, 4 L.
E. A. 79, City of Evansville v. State, 118 Ind. 426, 21 K e.
267, 4 L. E. A. 93, and State v. Denny, 118 Ind. 449, 21 N. E.
274, 4 L. E. A. 65. In the case first named the court said :
"The construction of sewers in a city, the supplying of gas,
water and fire protection, and many other matters that might
be mentioned, are matters in which the local communities alone
are concerned, and in which the state has no special interest;
and they are matters over which the people affected thereby have
exclusive control, and it cannot, in our opinion, be taken away
from them by the legislature." In Western Sav. Fund Soc. v.
City of Philadelphia. 31 Pa. St. 183, 72 Am. Dec. 730, Chief
Justice Lewis, delivering the opinion of the court, said : "Tlie
supply of gasliglit is no more a duty of sovereignty than ^^^ tlie
supply of water. Both these objects may be accomplislied
through the agencies of individuals or private corporations, and
in very many instances they are accomplished by these means.
If this power is granted to a borough or a city, it is a special
private franchise, made as well for the private emolument and
advantage of the city as for the public good. The whole invest-
ment is the private property of tlie city, as much so as the lands
368 American State Eeports, Vol. 101. [Kentucky,
and houses belonging to it. Blending the two powers in one
grant does not destroy the clear and well-settled distinction, and
the process of separation is not rendered impossible by the con-
fusion. In separating them, regard must be had to the object
of the legislature in conferring them. If granted for public pur-
poses exclusively, they belong to the corporate body in its public,
political or municipal character. But if the grant was for pur-
poses of private advantage and emolument, though tlie public
may derive a common benefit therefrom, the corporation quoad
hoc is to be regarded as a private company. It stands on the
same footing as would any individual or body of persons upon
whom the like special franchises have been conferred."
The distinction between the two capacities in which a munic-
ipality may act is nowhere better stated than in the two groat
opinions of Judge Cooley in People v. Hurlbut, 24 ]\Iich. 44, 9
Am. Eep. 103, and People v. Common Council of Detroit, 28
Mich. 228, 15 Am. Rep. 202. In the former case tlie question
was as to the power of the legislature to appoint permanent
ofTieers for the full term, whose duties were purely munieijial,
and arose over an act which created and a])pointed a looard of
pul)lic Avorks. In the opinion by Judge Cooley, it was said:
"In tlie case before us, the olhcers in question involve the ciis-
tody, care, management and control of tlie pavements, sewers,
waterworks ^^'^ and public buildings of the city, and the duties
are purely local. The state at large may have an indirect in-
ti're>t in an intelligent, honest, upright and prompt discharge of
them, but this is on commercial and neighborhood grounds, rather
than political, and it is not much greater or more direct than if
the state line excluded the city. Conceding to the state the au-
thoritv to shape the municipal organizations at its will, it would
not follow that a similar power of control might 1)0 exercised
by the state as regards the propertv which the corporation has
acquired, or the rights in the nature of property which have been
conferred ujion it. There are cases which assert such power,
but they are opposed to what seem to be the 1)est authorities, as
well as the soundest reason. The municipality, as an agent of
govcrinuent, is one thing; the corporation, as an owner of prop-
erty, is in some particulars to be regarded in a very difTerent
light Constitutional freedom certainly does not consist
in exemption from governmental interference in the citizen's
private affairs; in his being unmolested in his family, suffered
to buy, sell, and enjov property, and, generally, to seek happiness
May, 1902.] City of Lexington v. Thompson. 369
in his own way. All this might be permitted by the most arbi-
trary ruler, even though he allowed his subjects no degree of
political liberty. The government of an oligarchy may be as just
as regardful of private rights and as little burdensome as any
other ; but if it were sought to establish such a government over
our cities by law, it would hardly do to call upon a protesting
people to show where, in the constitution, the power to establish
it was prohibited. It would be necessary, on the other hand, to
point out to them where and by what unguarded words the
power had been conferred. Some things are too plain to be
written The state may mold local institutions accord-
ing **"* to its views of policy or expediency; but local govern-
ment is a matter of absolute right, and the state cannot take it
away. It would be the boldest mockery to speak of a city as
possessing municipal liberty where the state not only shaped its
government, but, at discretion, sent in its own agents to ad-
minister it; or to call that system one of constitutional freedom
under which it should be equally admissible to allow the people
full control in their local affairs or no control at all." In the
latter case of People v. Common Council of Detroit, 28 Mich.
228, 15 Am. Bep. 202, the question was more nearly similar to
that presented in the case at bar. It was the question of the
legislative power to compel local improvements, which is prac-
tically the same question as here presented, viz., the legislative
power to compel expenditure for a local purpose. The question,
as stated in the opinion, was whether there rested upon the
judiciary the duty, "by the compulsory process of this court, to
coerce the city of Detroit into entering in contracts involving
a del)t for a very large sum for an object of purely local concern,
which the legislative body of the city has refused to make."
Said the court, through Judge Cooley : "In People v. Hurlbut,
24 Mich. 44, 9 Am. Pep. 103, we considered at some length the
proposition which asserts the amplitude of legislative control
over municipal corporations, and we there conceded that, when
confined, as it should be, to such corporations as agencies of the
state, in its government, the proposition is entirely sound. In
all matters of legal concern there is no local right to act
independently of the state; and the local autliorities cannot be
permitted to determine for themselves whether they will contrib-
ute through taxation to the support of the state government, or
assist, when called upon, to suppress insurrections, or aid in the
enforcement of the police laws. Upon all such °^*^ subjects the
Am. St. Rep. Vol. 101— 24
i570 American State Reports, Vol. 101. [Kentucky,
state may exercise compulsory authority, and may enforce tlie
performance of local duties, either by employing local officers for
that purpose or through agents or officers of its own appoint-
ment But we also endeavored to show in People v. Hurl-
but, 24 Mich. 44, 9 Am. Rep. 103, that, though municipal au-
thorities are made use of in the state government, and as such
are under complete state control, they are not created exclus-
ively for that purpose, but have other objects and purposes
peculiarly local, and in which the state at large, except in con-
ferring the power and regulating its exercise, is legally no more
concerned than it is in the individual and private concerns of
its several citizens. Indeed, it would be easy to show that it is
not from the standpoint of state interest, but from that of local
interest, that the necessity of incorporating cities and villages
most distinctly appears. State duties of a local nature can, for
the most part, be very well performed through the employment
of the usual township and county organizations ; so that if the
state alone, in its corporate capacity, were to be regarded, the con-
ferring of special corporate powers on cities and villages might
very well be dispensed with The twofold character of
these corporations, as organizations on the one hand for state
purposes, and on the other hand for the benefit of the individual
corporators, has invariably been recognized by this court wlier-
ever there has been occasion to refer to it. We also referred in
People V. Ilurlhut, 24 Mich. 44, 9 Am. Rep. 103, to several de-
cisions in the federal supreme court and elsewhere to show that
municipal corporations, considered as communities endowed
with peculiar functions for the benefit of their own citizens,
have always l)ecn recognized as possessing powers and capacities
and as being entitled to exemptions distinct from tliose which
they possess or can claim as conveniences ^^^^ in state govern-
ment. If the authorities are examined, it will be found that
these powers and capacities, and the interests which are acfpiired
under them, are usually spoken of as private, in contradistinc-
tion to those in which the state is concerned, and which are called
'public,' thus putting these corporations, as regards all such
powers, capacities, and interests, substantially on the footing of
private corporations But it cannot be contended that au-
thority in the legislature to determine wliat shall be the extent
of capacity in a city to acquire and liold property is equivalent
to or contains within itself the authority to deprive the city of
property actually acquired by legislative permission. As to the
May, 1902.] City of Lexington v. Thompson. 371
property it thus holds for its own private purposes, a city is to
be regarded as a constituent in state government, and is entitled
to the like protection in its property rights as any natural per-
son who is also a constituent. The right of the state, as regards
such property, is a right of regulation, and, though broader than
exists in the case of individuals, is not a right of appropriation.
The constitutional principle that no person shall be deprived of
property without due process of law applies to artificial persons
as well as natural, and to municipal corporations in their private
capacity, as well as corporations for manufacturing and com-
mercial purposes. And when a local convenience or need is to
be supplied in which the people of the state at large or any por-
tion thereof outside the city limits, are not concerned, the state
can no more, by process of taxation, take from the individual
citizens the money to purchase it, than they could, if it had been
procured, appropriate it to state use. To this extent the cor-
porate right appears to us to be a clear and undoubted exception
to the general power of control which is vested in the state/'
^^"^ It may be admitted that the line which distinguishes
those matters with respect to which cities, as state agencies, ex-
ercise governmental functions from those as to which it acts
in its private, corporate capacity, representing the people of
the community, is not always well defined. It may well be that,
in cases in which it is difficult to ascertain to which class a
right, a power, or a function should be assigned^ the courts would
hesitate to annul an attempted exercise of legislative power.
But in cases in which the proper classification can be ascertained
the courts should not, and do not, hesitate to act. Upon a
question of this kind it is to be expected that under the vary-
ing provisions of various state constitutions, and with tlie dif-
ferent procedures and customs which obtained in the various
states at and before the date of the adoption of those consti-
tutions, there should be conflict in the authorities. For ex-
ample, in some of the cases we have cited the systems devised
for police and fire protection seem to have both been regarded
as purely municipal and local, and therefore exempt from legis-
lative interference. The better opinion as to police systems
seems to be that inasmuch as the state is charged primarily
with the preservation of public peace and the protection of life
and property in the cities as well as in the rural districts, the
city police is, in large measure at least, a part of the state con-
stabularv, and its members perform the functions of state of-
ficials in the exercise of delegated state sovereignty. There-
372 American State Reports, Vol. 101. [Kentucky,
fore, in so far as the police systems of our cities form a part
of the state government, they are subject to legislative control.
And this control has been distinctly recognized by tliis court in
Neumeyer v. Krakel, 110 Ky. 624, 23 Ky. Law Rep. 190, 62
S. W. 518. But between the police systems of municipalities
and the fire departments there seems to be a manifest distinc-
tion, ^^^ though many of the courts — as in Indiana, Nebraska
and California — ^have recognized the officers of both depart-
ments as purely municipal and local. The act in question does
not undertake to deprive the local authorities of the power of
appointment or selection of the fire commissioners, but only to
regulate and fix the salaries of the officers and employes. It
seems conceded that the establisliment of fire departments by
municipalities is a voluntary act of self-protection; that the
municipality, on grounds of public policy, is not responsible for
negligence of its fire department; and that the property of
the fire department is held by tlie municipalities in tlu'ir capa-
city of private corporations. We do not undertake to say that
the state is devoid of power to take measures for tlic protec-
tion of the property of its citizens from fire. Tlie question be-
fore us is whether the rate of payment of the employes of such
a system, devised for the benefit of tlie local coimnunity, of
no special interest or advantage to the state, except in so far
as it is advantageous and beneficial to the community, is mu-
nicipal or governmental in its nature. If the rate of pay to be
fixed for such employes is governmental, then, also, is tlie
variety of fire-engines to be used, the size and breed of the
horses which pull them, the number of fire plugs or cisterns
to be established, and the personnel of the force. If the legis-
lature can arbitrarily fix the rate of payment for such services
at sixty-five dollars per month, it can fix it at any other sum
which it deems reasonable; and if fixing the pay of firemen is
a governmental function because firemen render service in the
preservation of the property of citizens of the commonwealth,
then it is also a governmental function to fix absolutely the per
diem of the street sweepers and the monthly wages of the jani-
tors in the city hall. We do not think such legislative ^^'*^ in-
terference in a matter in which no one but the firemen and
the taxpayers of the city can possibly be interested could have
been in contemplation of the framers of our constitution, or
of the voters who sanctioned its adoption. If such a power is
governmental, it is governmental also to fix the wages of every
employe of every city, of whatever class. There were cities and
May, 1902.] City of Lexington v. Thompson. 373
towns before the constitution was adopted. At the date of its
adoption they were managing their own little local affairs.
They were employing and paying -the members of their fire
departments, as in times gone by they had managed their own
volunteer fire departments. The makers of the organic law —
the voters whose ballots operated to enact it — voted for it with
these facts before them, and they limited the time which might
be devoted to legislation to sixty days in each two years. Is
it conceivable that they expected or intended to permit the leg-
islature to take charge of the petty salaries of every hamlet
in the state? As said by Judge Olds in State v. Denny, 118
Ind. 449, 21 N. E. 282, 4 L. E. A. 65 : "It is fair to presume
that the people of the state, in the adoption of the constitution,
did not intend to surrender the right of local self-government
in so far as to allow the legislature to take charge of the fire
department of every town and city of the state, and to appoint
officers to take charge of and manage the affairs of such de-
partment, and limit the legislative body to sixty days every two
years. We do not believe that such was the intention of the
people at the time, nor do we believe that such is the extent
of the power at the present time; nor is there any word or sen-
tence in the constitution granting such power." As said by
Judge Cooley : "Some things are too plain to be written. The
state has no interest in the property within a city or town, ex-
cept such indirect interest as it has in ^*^ the property of all
its citizens. Since the organization of the state government,
towns and cities have universally exercised the exclusive right
of self-'^'overnment in the control and repair of streets, alleys
and sidewalks, in the construction of sewers and waterworks,
and the organization and control of fire departments. They
liave been held liable for damages resulting by reason of defects
in sidewalks, streets and sewers. All property within its cor-
porate limits is liable for the payment of debts created by the
municipality in providing these necessities to the municipality,
and in which the people other than those residing within the
])articular town or city are in no way directly interested." We
do not think the legislature can fix the salaries of firemen, any
more than it can fix the pay of street sweepers, the drivers of
ash carts, or fix the price per square yard which the citizen
shall pay for an improvement of the public ways.
The doctrines stated in McDonald v. City of Louisville (re-
cently decided), 113 Ky. 425, 24 Ivy. Law Rep. 271. G8 S. W.
413, are in full accord with the views here expressed.
374 American State Kepoets, Vol. 101. [Kentucky,
For the reasons given, the judgment is reversed, and cause
remanded, with directions to sustain the demurrer to the peti-
tion, and for further proceedings consistent herewith.
Whole court sitting.
The Legislature has No Power to appoint permanent officers for tbe
full term whose duties are purely municipal: People v. Hurlbut,
24 Mich. 44, 9 Am. Kep. 103. But see Gooch v. Exeter, 70 N. H.
413, 85 Am. St. Kep. 637, 48 Atl. 1100. That municipal corporations
have no vested rights in their offices, charters, or corporate powers,
see Commonwealth v. Moir, 199 Pa. St. 534, 85 Am. St. Eep. 801, 49
Atl. 351, 53 L. R. A. 837. As to the power of the lesrislature to ex-
ercise control over the property of municipal corporations, see Mount
Hope Cemetery v. Boston, 15S Mass. 509, 33 N. E. 695, 35 Am. St. Kep.
515, and note.
LONG V. ILLINOIS CENTRAL EAILROAD COMPANY.
[113 Ky. 806, 68 S. W. 1095.1
MASTER AND SERVANT — Assumption of Risks.— If a servant
proceeds under tlie order of his master or superior servant in per-
forming an act whereby he is exposed to unusual dana;er, tlie master
is liable for the resulting injury to the servant, unless the risk of
the act was fully realized by the latter, or was so apparent that no
man of ordinary prudence, situated as he was, would have under-
taken it. (p. 376.)
MASTER AND SERVANT— Risk Assumed Under Superior's
Order. — A section liand in obeying the order of his section-boss to
ride on a hand-ear to his place of work, when both knew that a fast
train was overdue, but neither knew its whereabouts, does not as-
sume the risk of injury from a collision therewith, unless the danger
was so obvious that a man of ordinary prudence, situated as such
servant was, would not have obeyed such order, aud this is a ques-
tion for the jury to determine, (p. 377.)
S. M. Pay ton, for the appellant.
W. II. Marriott, for the appellee.
^^"^ IIOBSOX, J. Appellant filed this suit to recover dam-
ages for the loss of life of his intestate by reason of tlie alleged
negligpiice ^^** of appellee, and at tlie conclusion of the evidence
on both sides the court instructed the jury pcreni})tori]y to find
for the defendant, although he had overruled this motion at
the close of the plaintilT's testimony. The intestate was a sec-
tion-hand in the service of appellee, working under a boss wliose
name was Kron. lie had been working for the company about
three days at the time of his death, although it would appear
June, 1903.] Long v. Illinois Central K, K. Co. 375
from the proof that he had been in the same service under a
previous employment. He was killed on September 10, 1900.
On that morning about 6 o'clock the section boss, with his crew
of seven men, including the intestate, left the section-house
on the hand-car and went to Einey station. They waited there
for some time for the passenger train known as No. 104, a
fast train from the south, but it was late. An accommodation
passenger train, known as No. 32, was due shortly also from
the south. Einey is not a telegraph station. The section boss
finally concluded that he could safely go to Otter creek, which was
about two miles north of Einey, and was under the impression
that the local passenger No. 32 would probably arrive before
the fast passenger train No. 104. He accordingly ordered
his men to get on the hand-car and go to Otter creek. This
they proceeded to do, and at each curve they stopped and looked
and listened for the train behind them, but saw or heard noth-
ing. After they had made three stops in this way, and when
they had errferged from the last curve, and were running down
the grade to the Otter creek switch, and not very far from it,
one of the men on the car suddenly called out, "There she
comes." The train was then emerging from a cut about eight
hundred feet from tlicm, and running, according to the proof
for the plaintiff, sixty or seventy miles an hour. The hands
on the car, except Long, immediately jumped off without stand-
ing on the order of their going. About the ^^® time they
reached the ground, or before they got up from the fall, the
train struck the car. Whether Long did not know of tlie ap-
proach of the train, or realize how close it was to him, is not
made clear by the proof. He remained on the car, and was
thrown up into the air by the engine as high as the top of the
smokestack, and his brains were knocked out. The proof for
the plaintiff tended to show that he was so situated that he
could not get off as quickly as the others, while that for the
defendant showed that the section boss called to him to leave
the car. But this was evidently just before the train struck it.
He was fifty-four years of age, and was perhaps not as quick
in his movements as the younger men. The proof of the plain-
tiff showed that there were two whistling-boards soutli of the
hand-car, one for a road crossing and one for tlie station, and
that the train did not whistle for either of tlio.sc. The proof
of the defendant showed that the train did wliistle, and tliat
it was running between fifty and sixty miles an hour. The
schedule time of the train was thirty-fiYe miles. On that morn-
376 American State Reports, Vol. 101. [Kentucky,
ing there were two sections of No. 104. Tlie train which struck
the hand-car was the first section, or an extra consisting of four
or five sleepers, carrying excursionists to Ohio, but running on
the time of the regular train, and as its first section. It had
run from Paducah, one hundred and seventy-five miles, without
stopping, and was about twenty-five minutes late. Shortly after
it came the second section of No. 104, or the regular fast train,
and also the accommodation passenger train, known as No. 32,
and they were all three at Otter creek together. It is urged
for appellee that the intestate knew the train was late and
overdue, and took the risk. It is urged for appellant that he
acted under the orders of his foreman, and had a right to pre-
sume that his superior would not order him to go ahead with
the hand-car if there was danger. The **^*^ principle relied
on is that the servant may lawfully obey the orders of his em-
ployer, relying on his superior knowledge and judgment. But
it is insisted that this principle does not apply, as Kiney was
not a telegraph station, and each of the men on the hand-car
knew as much about the danger as the boss. The circuit court
seems to have taken this view.
Kron had a watch, and so far as appears was the only man
in the crew who had a watch that was running; but they all
knew the time of the train, and that it was overdue. None
of them knew tliat there was an extra on the road that morning,
but as this wiis running on the time of the regular train, and was
simply the front section of it, it did not materially affect the
result. Tlie train men had no intimation of the presence of
the hand-car on the track. No flag was put out by Kron, and
no tor|Xidoes or anything to give notice of danger abcad. In
the American and English Encyclopedia of Law (volume 20,
second edition, page 120) the rule is thus stated: "Since the
master is under a sjjccial duty to inspect and investigate risks
to which the servant is exposed, and since the servant may rely
upon tlie performance of this duty, the fact that the servant
proceeds under the orders of the master in performing an act
whereby he is exposed to unusual danger renders the master
liable for a resulting injury to the servant, unices the risk of
the act was fully realized by the servant, and was so apparent
that no man of ordinary prudence, situated as he was, would
have undertaken it." A number of cases are collected sustain-
ing the text: See, also, to same effect, 1 Thompson on Neg-
ligence, sees. 192, 442. In section 445, it is said: "WTiere the
negligence of one person has prepared a risk for another, and
June, 1902,] Long v. Illinois Central R. R.Co. 377
that other, proceeding in the discharge of his duty or in the
course of his business, accepts the risk, and is hurt *^^ in con-
gequence of so doing, the question of whether he is guilty of
contributory negligence is almost always a question of fact for
the jury/' A servant is not called upon to set up his unaided
judgment against that of his superiors. He may rely upon
their orders : Ward v, Louisville etc. R. R. Co., 23 Ky. Law Rep.
1326, 65 S. W. 2. As has been well said, the servant's depend-
ent and inferior position is to be taken into consideration ; and
if the master gives him positive orders to go on with the work,
and the servant is injured, he may recover unless the work was
so obviously dangerous that a servant of ordinary prudence,
situated as he was, would not have obeyed.
In this case Long was a mere laborer. The section fore-
man under whose direction he worked represented the master,
and it was Long's duty to obey his orders in the usual course
of business. When he received an order it was not his duty
to sit in judgment upon its propriety, or to enter into a dis-
cussion with him as to the facts upon which it was based. He
had a right to presume that improper orders would not be given,
and to assume that the section foreman would not direct him
to take risks that were improper. If he was injured while obey-
ing the orders of his superior and by reason of his negligence,
he may recover, unless the risk was such that a person of ordi-
nary prudence, situated as Long was, would not have taken
it. In determining whether Long should have obeyed tlie orders
of his superior, it must be home in mind that the crew were out on
the road, and that if Long had not obeyed he could not have
remained with the crew. So far as appears, he knew nothing
about the running of the trains, and was not required by his
employment to know about them. It was the section boss' duty
to control the movements of the crow, and to do this with
proper regard to their safety. Long had a right to *^^ rely on
his superior knowledge and jiidgment as to the safety of pro-
ceeding with the hand-car under the circumstances, unless the
facts actually known to Long were such that a servant of ordi-
nary priidence, situated as he was, would not have taken the
risk, and this was a question for the jury. In an exhaustive
note on this subject to the case of Dallemand v. Saalfeldt,
48 L. R. A. 755, the editor, after pointing out t1ie conflict of au-
thority on the question, says: "Some judges, following out the
analogy of the doctrine stated in the last section, have held that
378 American State Eeports, Vol. 101. [Kentucky,
the rule by which contributory negligence is inferred, as matter
of law, from the undertaking or continuance of work which
entails an abnormal risk of which the servant was aware, in-
volves the corollary that the addition of the element of a di-
rect order will not prevent the defense from taking effect if the
servant understood tlie perils to which he would be exposed
in obeying that order But by almost all courts, in-
cluding those who apply the rule just referred to (see I'enn-
sylvania, Illinois and jS^orth Carolina cases cited infra), it
is hold that the fact of the servant's having been directly ordered
to do the act which caused the injury introduces into the situa-
tion a diHerentiating circumstance, which will render his con-
tributory negligence a question for the jury in nearly every
conceivable state of the evidence. It does not follow tliat be-
cause the servant could justify a disobedience of the order he
is guilty of negligence in obeying it Hence we find
it laid down in a leading case that where, in obedience to an
order, the servant performs a duty which, though dangerous,
is not so dangerous as to threaten immediate injury, or where
it is reasonably probable that the work may be safely done by
using extraordinary caution or skill, he may recover if ^^^ in-
jured In other cases the same principle is expressed
by a restrictive fonn of statement, the servant being held en-
titled to obey a specific command of his superior without neces-
sarily incurring the consequences of contributory negligence,
unless tlie execution of that command involves a hazard which
no ordinarily prudent person would have subjet-ted himself
to." In support of tliese principles, the following instances
are given in which the servant was allowed to recover: Where
a section-hand obeys orders to take a hand-car off the track,
when a train is close at hand; or where a section-hand under-
took to get two stones off the track when a train was approach-
ing; or where a brakeman jumped from a moving train; or
whore a laborer was injured by the fall of a large wheel which
be was hol})ing to move down an incline; or by the caving of
a bank ; or by the explosion of a blast over which he was ordered
to work. Those ])rinciples control this case. If a gravel train
had stopped at Kiney that morning, and waited for the passongor
until it was past duo, and the conductor had then concluded to
go on to Otter crook alioad of the passenger train and had or-
dered the hands aboard it would hardly be maintained that if the
train had boon run into by the passenger before it reached
Otter creek, and one of the laborers killed, the company would
Sept. 1902.] American National Bank v. Morey. 379
not be responsible. Yet this is, in substance, the case we have ;
for the section boss has as full control of the hand-car as the
conductor has of tlie gravel train. The hands on the gravel
train would not be required to inquire what orders the con-
ductor had, or what emergency induced him to go forward, or
what reason he had for supposing it to be safe. All this applies
equally to the laborer working under the section boss. Long
was simply riding on the hand-car in obedience to the orders
of his boss, who was ®^'* taking him to the place of work, and
for some reason was anxious, to get there as quickly as he could.
Judgment reversed, and cause remanded, with directions to
grant appellant a new trial.
Wliole court sitting.
Du Eclle and O'Eear, JJ., dissent.
The Doctrine of the Prhiripnl Case will be found discussed in the
monographic note to Houston etc. Ry. Co. v. De Walt, 97 Am. St. Rep.
884-900, on the right of recovery by employes accepting extrahazard-
ous duties.
AMERICA.Nr NATIOXAL BAXK v. MOHEY.
[113 Ky. 857, 69 S. W. 759.]
BANKS AND BANKING— Wrongful Dishonor of Depositor's
Check — Measure of Damages. — In the absence of malice, oppression
or bad motive, the wrongful refusal of a bank to honor its deposi-
tor's check makes it liable only for compensatory damages and not
for punitive damages, or damages for humiliation or mortification of
the depositor's feelings, (pp. 382, 383.)
BANKS AND BANKING— Dishonor of Check —Element of
Damages. — If a bank wrongfully dishonors its depositor's check,
without malice, the fact that such depositor had a nervous chill
when her check was protested and returned, cannot be considered in
determining the damages due her from such transaction, (p. 383.)
BANKS AND BANKING— Dishonor of Check— Measure of
Damages. — If a bank wrongfully dishonors a depositor's check, with-
out malice, the depositor is entitled to recover only compensatory
damages for time lost, expenses incurred, loss of business, or other
loss sustained by reason of the dishonor of the check, (p. 383.)
ITumphroy, Burnett & Humphrey, for the appellants.
B. C. and J. J. Davis, for the appellee
8-» IIOBSOX. J. On April 4, 1900, Joseph W. Morey de-
posited with appellant, the American Xational Bank, $150 to
380 American State Reports, Vol. 101. [Kentucky,
the credit of the appellee, Virginia R. Morey, who was his wife.
In the latter part of x\pril Morey raised a check given him by
Belknap & Co. from $800 to $1,800, and drew the money on
it from appellant. On May 4th he committed suicide. Appel-
lant settled with Belknap & Co. for the loss. On May 24th
appellee deposited with the bank $72, and this was credited
on her pass-book underneath the $150 which had theretofore
been entered on it. In the month of September, 1900, she was
in Chicago Illinois, taking lessons with Mrs. Leonide C. Lava-
ron, with the idea of coming back to Louisville, and doing burnt-
wood work. On September 15th, when she had been there one
week, and expected to continue a month longer, she gave Mrs.
Lavarou a check for $30 on appellant, to pay for two weeks'
lessons and materials bought of her. She had previously drawn
two checks for $25 each, which had been paid. When the $30
check reached appellant, it indorsed on it, "Has but twelve
dollars to her credit," and refused to pay it. The check was
returned from Chicago, and, after passing through the hands
of the different indorsers, was returned by Mrs. Lavaron to
ap])ellant. She was among strangers, had no ^^^ friends in
Cbicago, was very much mortified, had a nervous chill, and
finally had to be taken to her mother in law, at Englewood,
Illinois. She telegraphed to Louisville, but appellant persisted
in refusing to pay, and finally money was forwarded to lier from
some relatives in Louisville, with which she paid Mrs. Lavaron,
and, as we understand the evidence, returned to Louisville. In
Xovenilx^r she filed a suit against appellant to recover the balance
of her deposit, and also filed this suit to recover damages f(ir
the refusal to pay the check of $30, charging that the statement
of the defendant returned with the check was false and mali-
cious, made with the intent to injure the plaintiff; that by rea-
son thereof her credit had been injured, she had been greatlv
humiliated, and had endured great mental suffering, to her
flamagos in the sum of $1,000. After the suit to recover the
deposit was filed, appellant paid to her the balance due as shown
by her pass-book. $1G2, and filed answer in the suit for damages,
denying the allegations of the petition. That case was tried
later, resulting in a verdict and judgment for $G00, to reverse
which this appeal is prosecuted.
The reason tliat the bank did not pay the check was that
it conceived the idea that the $150 deposited to appellee's
credit bv her hus])and was his monev, and tliat it had a rijiht
to set off against it the $1,000 it had lost bv rea.ion of his rais-
Sept. 1903.] American National Bank v. Morey. 381
ing the Belknap check. So it charged off the $150 on her
account, and credited it to his account. But it gave her no
notice of this, and it manifestly had no right to do so, as far
as the proof shows. The court instructed the jury that if
at the time the check was presented to the defendant the plain-
tiff had money in the bank deposited to her credit sufficient to
pay the check, and the defendant refused to honor it, then they
should find for her such a sum ^^^ in damages as would fairly
compensate her for any loss or impairment of credit she sus-
tained, and for any humiliation or mortification of her feelings
she has been subjected to, by reason of the refusal to honor her
check; and if the defendant maliciously refused to honor the
check, then, in addition to compensatory damages, they might
award such additional sum, by way of punitive damages, as in
their discretion they deemed proper. The propriety of these
instructions is the chief question on the appeal. In Mt. Ster-
ling Nat. Bank v. Green, 99 Ky. 262, 18 Ky. Law Eep. 178, 35
S. W. 911, 32 L. R. A. 568, it was held that if a bank refuses
to honor the check of its customer without sufficient justifica-
tion, he has his action for damages against the bank. Citing
Morse on Banks and Banking, sec. 458. But in that case the
measure of damages was not determined. The authorities are
uniform that the relation between the bank and the depositor
is that of debtor and creditor. They are equally uniform that
when the bank fails to honor the check of its depositor, when
he has funds with it sufficient to pay the check, a riglit of ac-
tion accrues at once, and that the recovery is not to be limited
to nominal damages. Mr. Bishop says the banker for this may
be sued in tort, tho,ugh the wrong is believed to be without
name: Bishop on Xoncontract Law, sec. 491. In 5 American
and English Encyclopedia of Law, page 1060, the rule as to
the measure of damages is thus stated : "The depositor, by prov-
ing special loss, is always entitled to recover substantial dam-
ages. But if unable to show any special loss or injury, the
better opinion seems to be that he would still be entitled to
recover such moderate damages as the jury should judge to be
a fair and reasonable compensation for the injury which he
must have sustained, for it is almost impossible for a cheek to
be dishonored without reflecting upon the character and credit
of the drawer, the extent of ^^* the injury being within the
peculiar province of the jury to determine." This is taken from
the language of Lord Campbell, C. J., in Rolin v. Stewart, 14
Com. B. 595, and seems to be supported by the later cases in
382 American State Eeports, Vol. 101. [Iventucky,
England and in this country. In Patterson v. Marine Nat.
Bank, 130 Pa. St. 419, 17 Am. St. Rep. 778, 18 Atl. G32, a
judgment for $300 for dishonoring a check was affirmed. The
trial court charged the jury that the plaintilf was entitled to
recover substantial damages, and that they might find punitive
damages, "if under all the circumstances in the case, the defend-
ant unnecessarily and unreasonably acted in disregard of the
rights of plaintiff, and with partiality against him." The court
said : "A bank is an institution of a quasi public character. It
is chartered by the government for the purpose, inter alia, of
holding and safely keeping the moneys of individuals and cor-
porations. It receives such moneys upon an implied contract
to pay the depositors' checks upon demand. Individual and
corporate business could hardly exist for a day without banking
facilities. At the same time, the business of the community
would be at the mercy of banks if they could at their pleasure
refuse to honor the depositors' checks, and then claim that such
action was a mere breach of an ordinary contract, for which
only nominal damages could be recovered, unless special dam-
ages were proved. There is something more than a breach of
contract in such cases; there is a question of public policy in-
volved, as we said in First Nat. Bank v. Mason, 95 Pa. St. 113,
-10 Am. Pep. 632; and a breach of the implied contract between
the bank and its depositor entitles the latter to recover sub-
stantial damages. In this case the jury do not appear to have
given more; they evidently did not award punitive damages."
in Schaffner v. Ehrman, 139 111. 109, 32 Am. St. Pop. 1!»2, 28
N. E. 917, 15 L. P. A. 134, a judgment ^"^ for $150 damages
was afhrmcd, where tlie dishonor of the checks was due to a
mistake of the bookkeeper in charging the cliecks of another
customer to the account. It was held that there was no evidence
of malice, and there seems from the report of the case to have
brcii little proof of special damage. The court laid down as
tlie proper measure of damages a reasonable CDninonsation for
the injury the customer must have received from tlie dislionoring
of his elu'oks. In Bank of Commerce v. Goos, 39 Xel). 437. 58
X. W. 81, 23 T>. P. A. 190, when Coos' check was dishonored,
he was arrested and placed in prison, and newspajiors were
printed and sold on the streets, publishing the fact. The court
reversed a verdict for the plaintiff, on the ground that the
projier measure of damages was not given the jury. It hold
that there could bo no punitive damages, that his arrest and
imprisonment could not he considered, and that he could only
Sept. 1902.] American Xational Bank v. Moret. 383
recover such temperate damages as would be a reasonable com-
pensation for the dishonor of the check. Substantially the
same rule was laid down in Svendsen v. State Bank, 64 Minn.
40, 58 Am. St. Eep. 522, 65 K W. 1086, 31 L. R. A. 552; J.
M. James Co. v. Continental Nat. Bank, 105 Tenn. 1, 80 Am.
St. Eep. 857, 58 S. W. 261, 51 L. R. A. 255; Atlanta Nat.
Bank v. Davis, 96 Ga. 334, 51 Am. St. Rep. 139, 23 S. E. 190.
There was some evidence as to loss of credit, and aside from
this, the instruction so far as it submitted this as an element of
damage, was correct. But there was nothing in the case to in-
dicate actual malice, oppression, or bad motive on the part of
the bank and no instruction should have been given as to puni-
tive damages. None of the cases allow a recovery for humilia-
tion or mortification of feeling where compensatory damages
only are allowed, and the instruction of the court, in so far as
it allowed a recovery for this, was improper. The fact that the
plaintiff *^ had a nervous chill when the check was protested
and returned to her and had to be taken to her mother in law's,
was immaterial, as the nervous chill was not the natural result
of the protest of the check, or such a thing as should reasonably
have been anticipated from persons of ordinary health and
strength. On the contrary, the plaintiff may recover for any
time she lost, or any expenses she incurred, or for any loss of
business or instruction that she sustained, by reason of the
dishonor of the check. Her pleading does not appear to have
been drawn under the view of the law we have indicated, and
on the return of the case she may have leave to amend her
petition, and set out her damages specially, if she desires to do
so: Robinson v. Western Union Tel. Co., 24 Ky. Law Rep. 452.
68 S. W. 656. The action rests u])on the ground that the bank
is charged by law with certain duties, and tliat for a breach of
the?e duties it is liable to the party injured for the damages
done him. The measure of these damages is the same as in
the case of the Ijroaoh of otlier duties im])osed by law.
Judgment reversed, and cause remanded for a new trial.
The Rrrnrcrii of Damnfirft, sneoial and coTT!p<^nsntory, for tho failure
of a bank to honor a chrr-'k, ig clisfiissed in th'> Tiionographic note to
J. M. James Co. v. Bank, 80 Am. St. Eep. 865-875.
CASES
IN THE
SUPREME COURT
MINNEt^OTA.
KLUGHEEZ v. CHICAGO, MILWAUKEE AND ST. PAUL
RAILWAY COMPANY.
[90 Minn. 17, 95 N. W. 586.]
NEGLIGENCE — Dangerous Premises. — By a Mere Licensee is
meant one who has the tacit permission or privilege of entering upon
the premises of another, but without invitation, express or implied;
under such circumstances a person enters at his own risk, and must
take the premises in the condition in which he finds them, (p. 386.)
NEGLIGENCE — Dangerous Premises. — If One Invites another,
either expressly or by implication, to go upon his premises, there
arises the obligation to use ordinary care that the visitor shall not be
injured, (p. 386.)
RAILWAY DEPOT — Duty to Persons There Near Train
Time. — Wliile a railway company cannot be expected to be contin-
uously on its guard as against loiterers and trespassers, yet it should
anticipate that its station-house and depot grounds may be used as
a place of meeting by people for various lawful purposes at or about
the time of the arrival and departure of trains, (p. 388.)
RAILWAY DEPOT — Duty to Persons There— Time as Affect-
ing.— The time, in respect to the arrival of trains, at which a person
visits a depot is to be taken into consideration in determining the
duty owed him by the railway company. But it is not possible to
lay down a general rule as to the limit of time under all conditions
within which one shall be restricted to visit such premises at his
peril; it is a question of fact to be determined according to the cir-
cumstances of e;ich particular case. (p. 389.)
RAILWAY STATION— Duty to Persons Meeting There. — As
toward one who goes to a depot an hour and ten minutes before train
time in good faith to meet a person on a matter of business who,
he believes, will take the train, the railway company, in unloading
a gravel train near by, owes the duty of ordinary care. (p. 389.)
RAILWAY — Breaking of Cable in Unloading Gravel Train.—
In an action against a railway company for injuries sustained by a
person, while standing near a depot, through the breaking from its
(3»4J
June, 1903.] Klugherz v. Chicago etc. Ey. Co. 385
stay rapes of a cable used in unloading a gravel train, evidence of
the manner of starting the engine and of the character of the ropes
is admissible, (p. 390.)
Pfau & Pfau and H. H. Field, for the appellant
Young & Lossow, for the respondent.
*^ LEWIS, J. Appellant company was engaged in filling a
hole on the northerly side of its depot in the city of Mankato,
and for such purpose had constructed a temporary track upon
which it ran a gravel train and unloaded the gravel by means
of a plow. The track at this point was upon a curve, and the
plow was placed on the northerly end of the gravel train, one
end of a long steel wire cable was attached to the plow, and the
other end was fastened to a locomotive at the southerly end of
the train, and because of the curvature of the track it was
necessary to fasten the cable over the middle of the cars so that
the plow would follow them. The cable was kept in place by
means of pulleys ^^ some distance apart, fastened with ropes
to the side of the cars upon the outer arc of the circle, and the
cable passed through these pulleys. A straight line drawn from
the plow to the locomotive touched the outhouse and the corner
of the depot.
About 4 o'clock in the afternoon, respondent, a boy of four-
teen years, was standing in the depot grounds at a point about
one-third of the distance between the corner of the depot and
the outhouse, which was about twenty feet from the depot. The
locomotive was started in motion to begin the process of plow-
ing the gravel from the cars, when, at a point nearly opposite
the depot, one of the ropes broke, releasing the cable, which,
with the action of the engine, violently straightened, struck the
corner of the depot and the outhouse, and also respondent,
causing him serious injury. Respondent secured a verdict in
the court below, and this appeal involves the question whether,
under the circumstances, appellant was called upon to exercise
ordinary care; also the correctness of certain rulings of the
court.
The liability of the company turned upon the nature of tlie
relation existing between it and respondent at the time of the
accident. If respondent was a trespasser upon appellant's
property, then it owed him no duty except to refrain from those
acts commonly denominated "willful," but there is no claim
in this case that any such degree of purpose was manifest. It
is claimed that under the great trend of authorities, if respond-
Am. St. Rep. Vol. 101—25
386 American State Reports, Vol. 101. [Minnesota,
ent was upon the premises as a mere licensee, appellant owed
him no greater degree of care than if he had been a trespasser.
Bj a "mere licensee" is meant the tacit permission or privi-
lege which a person has of entering upon the premises of an-
other, but without any invitation, express or implied. Under
such circumstances a person enters at his own risk, and, the
owner having assumed no responsibility in respect to the con-
duct or care of such trespasser or licensee, must take the prem-
ises in the condition in which he finds them. But where the
owner, either expressly or by implication, invites a person to go
upon his premises, there arises at once the obligation to use
ordinary care to see that the person thus invited shall not be
injured. This duty arises from the nature of the contract. It
is reasonable for the person invited to assume that the owner
will use ordinary prudence to protect him while acting in pur-
suance of the invitation.
^^ No great difficulty has arisen in applying this principle
to private parties, but there has been much discussion, and some
difference of opinion, with reference to the obligations of pub-
lic and quasi public corporations as to persons in and around
their premises, such as station-houses and depot grounds. It
is generally claimed by such corporations that station-houses
and depot grounds are primarily their properties, to be used
for their purposes, and that the pu])lic has no rights connected
therewitli except in the transaction of business with tlie owners.
There has been a difference of opinion as to what constitutes
such business. It will not be disputed that the public has the
riglit to enter stations, and, so far as reasonably necessary,
depot grounds, for the purpose of taking trains and alighting
from them, and making inquiries at the offices of the depot
during business hours for the purpose of obtaining information
and transacting business with tlie officers or agents in cliarge;
l)ut some courts have limited to a very narrow compass the time
within which a passenger may enter such premises for tlie [)ur-
pose of awaiting the arrival of trains: Pennsylvania 11. Co. v.
:\lartin, 111 Fed. 58G, 49 C. C. A. 474, 55 L. R. A. 3G1.
Controversy has often arisen where a party injured had, or
claimed to have, some business relations directlv with the com-
pany, and the question at issue was whether, under the circum-
stances existing at tlie particular time, the company was under
obligations to exercise ordinary care for his protection. It has
been held that where a person entered a railroad station in the
evening to take a train, and, after finding that the last one had
June, 1903.] Klugherz v. Chicago etc. Ey. Co. 387
gone, remained there for his own convenience for some time
during which the station master put out the lights at the usual
closing time, the company was not liable for injuries to such
person received while stepping off the platform in the dark:
Heinlein v. Boston etc. K. E., 147 Mass. 136, 9 Am. St. Eep.
676, 16 N. E, 698. The decision is based upon the principle
that the railroad company had business hours within which it
kept the station open and lighted for the benefit of the public,
and that its rules and hours for doing business must be com-
plied with. To the same effect, see Cincinnati etc. E. E. Co.
V. Aller, 64 Ohio St. 183, 60 N. E. 205, and Dowd v. Chicago
etc. Ey. Co., 84 Wis. 105, 36 Am. St. Eep. 917, 54 N. W. 24,
20 L. E. A. 527. But that rule does not govern the case before
us.
The case now under consideration is also distinguished from
those cases where a railroad company has permitted the public
to acquire by ^* user certain rights or privileges, as, for in-
stance, a crossing over some part of its grounds or track. Un-
der such circumstances it has been held that the company will
be required to exercise the same degree of care as applicable to
other streets or crossings : Davis v. Chicago etc. Ey., 58 Wis. 646,
46 Am. Eep. 667, 17 N. W. 406; Harriman v. Pittsburgh etc.
E. E. Co., 45 Ohio St. 11, 4 Am. St. Eep. 507, 12 N. E. 451.
It is claimed by respondent that the case is governed by In-
galls v. Adams Exp. Co., 44 Minn. 128, 46 N. W. 325, where it
was held that a police officer of Austin, Minnesota, was entitled
to recover for injuries received by the negligent running of an
overloaded truck on the platform of the railway company; but
in that case the accident occurred at or about the time of the
arrival or departure of a train, and the officer was in the exer-
cise of his duty at the time, and had a right to be there. It
must be conceded that railroad companies have a right to de-
termine what are reasonable business hours during which the
public is permitted to transact business with them, and that
they mav limit the use of their premises to certain definite per-
iods of time; but we are not prepared to say that, as a matter
of law, such companies do not, under any circumstances, owe
the duty of ordinary care to persons having occasion to visit a
depot for the purpose of meeting some one expected to bo tliere
at a certain time, even though neither party has business rela-
tions with the company.
In this case the young man stated that he went to the station
to meet a Mr. Bates on a matter of business; that he expected
388 American State Reports, Vol, 101. [Minnesota,
him to be there about train time for the purpose of boarding
the train ; but wlien respondent went to the premises it was
about an hour and ten minutes before tlie time of departure
of the train, of wliich fact he was aware. It may be inferred
that he went so early in anticipation of meeting the man there,
or in that vicinity, in time to find him and have a consultation
before his departure.
We are unable to see why the duty of the railroad company
to the public should be confined to those having strictly business
relations with the company. There is no reasonable distinction
between the riglits of a person visiting the premises for the pur-
pose of escorting another to a departing train, and the rights
of one who goes there for the purpose of talking with a depart^
ing person on a business matter. There is a wide difference
between the use of the premises with such ^^ motives and
those of idle curiosity and merely to kill time. ^Ylli]e the com-
pany cannot be expected to be continuously on its guard as
against loiterers and trespassers, yet it is leasonable tliat it
should anticipate that the station-house and depot grounds may
be used as a place of meeting by people for various lawful pur-
poses at or about the time of the arrival and departure of trains.
The dangers connected with the unloading of the gravel train
were not apparent to a casual observer who might be in the
vicinity — the unloading operations were not conducted ujion
the premises, although contiguous thereto. The mctliod of fas-
toning tlie cable by means of pulleys and ropes, and the manner
of operating the plow by an engine, were dangerous proceedings.
It must have boon evident to those in charge of the work that
if the stay ropes gave way the cable would instantly sweep
across the intervening space between the cars and the depot,
and this space was outside of the system of tracks. There has
bcH>n much discussion in the books, and fine distinctions have
been drawn, between active and passive negligence and acts of
commission and omission. There is a marked difTorence be-
tween acts of negligence attributed to the condition of the prem-
ises, or arising from acts committed thereon, and conditions
arising outside of the premises. On the one hand, a visitor to
the depot grounds may reasonably be expected to assume the
condition as he fmds it, for it is open to his observation; on
the other hand, there may be nothing to put him upon his
guard, and it would seem unreasonable to require even a licensee
to assume the risk of meeting with such unlooked for occur-
rences.
June, 1903.] Klugherz v. Chicago etc. Ry. Co. 389
What the result might be if the respondent was a licensee, it
is not now necessary to determine, for we are not prepared to
hold, as a matter of law, that he was either a trespasser or a
mere licensee. Nor do the facts, taken most favorably for re-
spondent, require, as a matter of law, the conclusion that he
was upon the premises by invitation, expressed or implied, and
that appellant owed him the duty of ordinary care. It is not
possible to lay down a general rule as to the limit of time under
all conditions within which a person shall be restricted to visit
such premises at his own peril. It is a question of fact, and
must be determined according to the circumstances of each
particular case. The line should not be too closely drawn, and
under the facts and circumstances of this case we think it was
a question for the ^^ jury to determine whether the respondent
was acting in good faith and in the reasonable expectation of
meeting a person to be there for a lawful purpose. In deter-
mining that question, the time respondent went to the depot in
advance of the train time is to be taken into consideration, but
the fact that he was there an hour and ten minutes ahead of
time is not necessarily decisive. If he was there with such in-
tention, appellant owed him the duty of exercising ordinary
care in conducting the unloading operations in the vicinity.
Whether it did exercise such care by the use of proper stay
ropes, or by keeping a reasonable lookout to guard persons
against the danger, were questions for the jury.
The court instructed the jury that if respondent was upon
the premises for the lawful purpose of seeing ]\Ir. Bates, whom
he supposed was going to take the train an hour or so after the
time he went there, appellant owed him the duty of ordinary
care; and to the same effect if he was there for a lawful and
legitimate purpose, near the time when a train was about to
arrive or depart, for the purpose of seeing a person whom he
supposed was going away on the train, then the company owed
the same duty. This was error, as it took from the jury con-
sideration of the element of time. As above stated, the time
he was there should be considered in connection with all the
circumstances. For this reason a new trial must be granted.
There was no error in receiving testimony with reference to
the circumstances under which respondent went to the depot,
and his expect-ation of meeting Mr. Bates. It was also proper
for the court to receive evidence as to how the accident occurred,
including the manner in which the engine was started. The
gist of the act of negligence was the insufficient fastening of
390 American State Reports, Vol. 101. [Minnesota,
the cable, but in determining that question it was competent to
consider the manner in which the engine was started. It was
also proper to receive evidence in regard to tlie character of the
rope and its suitability for such use. We find no other error in
the charge of the court.
Order rovei-sed, and new trial granted.
It is the Duty of a Railtoay company to keep its station-house, or
depot, in a comfortable, safe, and proper condition: St. Louis etc.
Ky. Co. V. Wilson, 70 Ark. 136, 91 Am. St. Rep. 74, 66 S. W. 661;
Jordan v. New York etc. R. R. Co., 165 Mass. 346. 52 Am. St. Rep.
522, 43 N. E. Ill, 32 L. R. A. 101; Fullerton v. Fordyce, 121 Mo. 1,
42 Am. St. Rep. 516, 25 S. W. 587. It has been held^ however, that
one who goes there at night after business hours assumes the risk
of the premises being unsafe: Sullivan v. Minneapolis etc. Ry. Co.,
90 Minn. 390, post, p. 414, 97 N. W. 114. And it has also been
held that a railway company may insist that such of its patrons as
contemplate taking a morning train shall, if they desire to sleep,
find quarters other than its waiting-room: Central of Georgia Ry.
Co. V. Motes, 117 Ga. 923, 97 Am. St. Rep. 223, 43 S. E. 990.
BEEDE V. WISCONSIN CENTEAL RAILWAY COMPANY.
[90 Minn. 36, 95 N", W. 454.]
CONNECTING CARRIERS — Presumption of Negligence.— If
apples, shipped over connecting railroads, were in good condition
when accc])ted by the first carrier but damaged by frost when de-
livered by the last carrier, the burden is on it to show that tlio loss
did not result from any cause for which it was responsildc, although
the apples were transported in through sealed cars. (p. 392.)
Edmund A. Prendcrgast and Tlioiiias II. (Jill, for the ap-
pellant.
George II. Stiles, for the respondent.
^"^ START, C. J. Action to recover damages which the
plaintiff sustained by the alleged negligence of the defendant,
as a common carrier, in tlie trans})ortation of two carloads of
iipplcs. At the close of the evidence the defendant requested
the trial court to direct a verdict in its favor. The motion was
denied, and tlie cause submitted to the jury, and a verdict re-
turned in favor of the plaintiff. The defendant appealed from
an order denying its motion for judgment or a new trial.
The principal question on this appeal is whether the verdict
is sustained by the evidence. The facts were stipulated by the
June, 1903.] Beede v. Wisconsin Central Ry. Co. 391
parties, except certain facts to which an expert testified. The
facts, as stipulated, were, in effect, these: The plaintiff shipped
from Plymouth, New Hampshire, two carloads of apples, con-
signed to himself at St. Paul. The apples were in good condi-
tion when delivered to the initial carrier, and were placed in
refrigerator-cars, and forwarded at owner's risk of freezing,
and arrived at their destination with the seal to the cars intact.
When the apples were delivered to the plaintiff at St. Paul by
the defendant, the last carrier, they had been injured by frost,
and the plaintiff was damaged thereby in the sum of two hun-
dred and thirty-six dollars and twenty-five cents, for which
sum, with interest, it was stipulated he should have judgment
in this case, if entitled to recover. The cars reached Lancaster,
New Hampshire, December 9, 1900, and remained there some
nineteen hours. During this time the thermometer ranged
from six to sixteen degrees below zero. It does not appear
whether anything was done to protect the apples from frost
while the cars were at Lancaster. The cars came into the
possession of the defendant at Manitowoc on December ^* loth,
and were forwarded over its line on the first train leaving after
their arrival. In the meantime they stood upon the sidetrack
of the defendant seventeen hours without any protection from
the elements, during wliich time the thermometer ranged from
eight to seventeen degrees below freezing point. There was also
testimony by an expert in handling and transporting fruit to
the effect tliat apples, if kept in motion, could be transported
in refrigerator-cars ^dthout freezing when the thermometer
ranged from zero to fifteen degrees below. He also exprcssx?d
an opinion to the effect that, if the apples were sidetracked and
remained without any protection for seventeen hours, they would
become frosted, with the thermometer standing from eight to
seventeen degrees below freezing point.
It is the claim of the defendant that it conclusively appears
from the evidence that the apples were frozen before tliey came
to the possL-ssion of the defendant. It may be conceded tluit
the evidence would sustain a verdict to that effect, but we are
of the opinion that the verdict against the defendant is not so
decidedly against the preponderance of the evidence as to justil'v
us in interfering with it. The apples were in good condition
when accepted by the first carrier, and damaged by frost wlien
delivered to the consignee by the defendant, the last carrier:
hence the burden was on it to show that the loss did not result
from any cause for which it was responsible : Shriver v. Sioux
392 American State Reports, Vol. 101. [Minnesota,
City etc. Ry. Co., 24 Minn. 506, 31 Am. Rep. 353; Shea v. Min-
neapolis etc. M. Ry. Co., 63 Minn. 228, 65 X. W. 458. This
rule is not modified, as defendant claims, by the fact that the
apples were transported in through sealed cars : Leo v. St. I'aul
etc. Ry. Co., 30 Minn. 438, 15 N. W. 872.
The defendant sought to show that it was not responsible for
the loss by showing that the weather was colder while the apples
were in the hands of the initial and intermediate carriers than
it was while the defendant had control of them, and that for
nineteen hours the cars were detained at Lancaster when the
weather was severely cold. It cannot, however, be presumed,
in the absence of evidence, that no measures were taken to pro-
tect the apples from frost during this delay. The evidence was
not conclusive that the apples were in the same condition when
they came to the hands of the defendant as they were when it
delivered them to the plaintiff, for the inference to be drawn
^^ from the admitted facts was one of fact for the jury. There
were no prejudicial errors in the charge of the court. It is
clear from the whole charge that the court did not intend to
submit to the j\iry any claim on the part of tlie plaintiff for
damages by reason of the delay of the cars at Manitowoc.
What was said in this res]>ect was technically inaccurate, but
could not, in our opinion, have misled the jury. If defendant
believed otherwise, it should have called the attention of the
court to the matter: Steinbauer v. Stone, 85 ^Uim. 274, 88 N.
W. 754.
Order alTirmod.
BURDEN OF PROOF AS BETWEEN CONNECTING CARRIERS
TO SHOW WHO IS AT FAULT FOR LOSS OF INJURY.
I. First or Initial Carrier, 392.
II. Intermediate Carriers, 394.
III. Last or Terminal Carrier.
a. In Case of Damage to Goods, 394.
b. Of Loss of Goods, 396.
c. Particular Kinds of Goods — Baggage, 397.
d. Goods Delivered by Expressmen, 397.
e. Shipments in Through Sealed Cars, 398.
IV. Rebuttal of Presumptions, 399.
I. First or Initial Carrier.
Whore goods are rocoived in good condition by a carrior for sliip-
mcnt. and in the course of their transportation they pass througli
the hands and over the lines of connecting carriers, there is no
presumption, if they are delivered by the last carrier in a damaged
condition, that the injury occurred while the goods were in the hands
June, 1903.] Beede v. Wisconsin Central Ry. Co. 393
of the first carrier: Fannington Mercantile Co, v. Chicago etc. R.
E, Co., 166 Mass. 154, 44 N. E. 131. It would seem, too, that the
same rule is applicable where a part of the goods are lost during their
transportation, so that only a partial delivery can be made by the
last carrier; for when a part of a shipment is lost, the loss is in the
nature of damage to the goods: See Gwyn Harper Mfg. Co. v. Caro-
lina Cent. E. E., 128 N. C. 280, 83 Am. St. Eep. 675, 38 S. E. 894,
American Exp. Co. v. Second Nat. Bank, 69 Pa, St. 394, 8 Am, Eep.
268. But where there is a total loss, or the freight or baggage, as
the case may be, does not reach its destination, the first carrier is
prima facie liable for the loss: Ohio etc. E. E. Co. v. Emrich, 24 IlL
App. 245; International etc. Ey. Co. v. Foltz, 3 Tex. Civ. App. 644,
22 S. W. 541; Brintnall v. Saratoga etc. E. R. Co., 32 Vt. 665.
To quote from the opinion of Justice McClelland in Louisville etc.
E. E. Co. V. Jones, 100 Ala. 263, 14 South. 114: "Where goods are
delivered to a common carrier for transportation to a point beyond
its own lines under a through bill of lading, which, however, con-
tains a stipulation exempting the receiving carrier from liability
from loss or damage occurring beyond its own terminal, and the
goods are not delivered to the consignee at all, the presumption of
law is that they were lost by the receiving carrier, and he will be
liable unless he can show that the consignment was safely delivered
to the connecting carrier; the burden is on him in such case, and
plaintiff having shown nondelivery by the discharging carrier is en-
titled to recover without more: Georgia Pac. Ey. Co. v. Hughart, 90
Ala. 36, 8 South. 62.
"On the other hand, where upon such shipment and bill of lading
the goods have been delivered by the connecting or final carrier to
the consignee, or have been carried to the place of consignment for
delivery, and are then in a damaged condition, the presumption of
law is that they were delivered by the receiving to the connecting
carrier in good condition, and that the damage occurred while they
were in the possession of the delivering carrier; and, therefore, in an
action against the receiving carrier for damages occasioned, not by
the loss, destruction, or nondelivery of the property, but by the in-
juries inflicted upon it at some time before delivery to the consignee,
the presumption of safe delivery by the first to the second carrier
must be overcome by evidence that the damage occurred before the
shipment passed out of the possession of the first carrier; the burden
in this latter case is upon the plaintiff, and unless he discharges it,
he fails to make out his cause of action and must be cast. The pre-
sumption of law being that the delivering carrier has damaged the
property, in an action by the owner against him, the plaintiff need
only prove the shipment in good condition and the delivery in Jam-
aged condition: Montgomery etc. E}'. Co. v. Culver, 75 Ala. 587, 51
Am. Eep. 483; Cooper v. Georgia Pac. Ky. Co., 92 Ala. 329, 25 Am.
St. Eep. 59, 9 South. 159."
394 American State Reports, Vol. 101. [Minnesota,
In an action against the initial carrier for damages, the plaintiff
must rebut the presumption that the goods were injured while they
were in the hands of the terminal carrier. This being done, it de-
volves on the intermediate carrier to show its freedom from respon-
sibility; and this being shown, the burden is on the first carrier to
overcome the presumption of negligence which arises from the circum-
stances: Fort Worth etc. Ey. Co. v. Shanley (Tex. Civ. App.), 81 S.
W. 1014. It is not error to refuse to enter judgment against the
first carrier, for the reason that it fails to show that the injury did
not occur on its line, where there is no evidence that such was the
case: St. Louis etc. Ky. Co. v. Cohen (Tex. Civ. App.), 55 S. W. 1123.
This, however, is anticipatory of presumptions against intermediate
and terminal carriers.
II. Intermediate Carriers.
It is said that among connecting carriers that one in whose hands
goods are found injured is presumed to have caused the damage, and
the burden is upon it to rebut the presumption: Morgantown Mfg.
Co. V. Ohio etc. Ey. Co., 121 N. C. 514, 61 Am. St. Eep. 679, 28 S. E.
474; Hinkle v. Southern Ey. Co., 126 N. C. 932, 78 Am. St. Eep. 685,
36 S. E. 348. In case such carrier is an intermediate carrier, neither
the first nor the last of connecting lines, this presumption would
seem to attach to it: See Savannah etc. Ey. Co. v. Harris, 26 Fla.
148, 23 Am. St. Eep. 551, 7 South. 544. But when property, in this
case baggage, is in good condition when delivered to an intermediate
road, and damaged when delivered at its destination, it does not de-
volve on the intermediate road to show that it was in good condition
when delivered to the terminal road: Montgomery i>tc. Ey. Co. v.
Culver, 75 Ala. 587, 51 Am. Eep. 483. If, however, baggage does
not reach its destination, the burden is on an intermediate carrier
into whose hands the baggage came to show a safe delivery thereof
to the next carrier: Philadelphia etc. E. E. Co. v. Harper, 29 Md.
330.
III. Last or Terminal Carrier.
a. In Case of Damage to Goods. — If goods were received in good
condition by the first or any intermediate carrier of a connecting
line, the last or terminal carrier of the line is presumed to have re
ceived Ihem in that condition; and if they are damaged when they
reach the j)lace of consignment, the burden is on the last carrier, in
an action against it for damages, to sliow th:it the injury did not
occur wliilc the goods wore in its liaiuls: Evans v. Atlanta et(;. E. E.
Co., 5G Ga. 498; Cieorgia E. E. Co. v. Gann, 68 Ga. 350; Central E. E.
etc. Co. V. Bayer, 91 Ga. 115, 1(3 S. E. 933; Sh river v. Sioux City etc.
E. E. Co., 24 Minn. 5()6, 31 Am. Kep. 353; Dixon v. Eichmond eto.
E, E. Co., 74 N. C. 538; Memphis etc. E. E. Co. v. lloUoway, 9 Baxt.
188; Louisville etc. E. E. Co. v. Tennessee Browing Co., 96 Tenn. 677,
36 S. W. 392; Texas etc. Ey. Co. v. Adams, 78 Tex. 372, 22 Am, St.
June, 1903.] Beede v. Wisconsin Central Ey. Co. 395
Eep. 56, 14 S. W. 666; Houston etc. E. B. Co. v. Ney (Tex. Civ. App.),
58 S. W. 43; Gulf etc. Ey. Co. v. Cushney, 95 Tex. 309, 67 S. W.
77. Compare Marquette etc. E. E. Co. v. Kirkwood, 45 Mich. 51, 40
Am. Eep. 453, 7 N. W. 209. But to raise this presumption, it must
be shown that the goods were delivered in good condition to the
first carrier: Lake Erie etc. Ey. Co. v. Oakes, 11 111. App. 489; and
that the loss occurred while the car was in transitu: Cooper v. Geor-
gia Pac. Ey. Co., 92 Ala. 329, 25 Am. St. Eep. 59, 9 South. 159.
"The rule is," says Justice Lewis in Gulf etc. Ey. Co. v. Jones,
1 Ind. Tex. 354, 37 S. W. 208, "when property is delivered to a rail-
road company to be transported by that and other companies over
their respective roads to its place of destination, it is enough for
the owner, in an action against the company delivering the prop-
erty to recover damages for negligence, to show that he delivered the
property to the first carrier in good order; and the burden is then
cast upon the company delivering the goods thus injured of proving
that they were not injured while in its possession, or that they
came to its possession thus injured."
This presumption is not removed by a statute which makes the ini-
tial carrier liable in every case for loss or damage to goods, allowing
it, however, to discharge itself by the production of a written
receipt from the next carrier to which it properly delivered the
goods: Willett v. Southern Ey., 66 S. C. 477, 45 S. E. 93.
Concerning the reason and policy of this doctrine, Justice Woods
in the above South Carolina case has this to say: "The general rule
is, that the burden is on the carrier which delivers the goods to the
consignee to respond to any damage which occurs in transit, or show
that it was done while in the hands of some other carrier 'In
an action against the last carrier, if it is shown that the goods were
delivered to the first carrier in good order, this condition, in the
absence of a contrary showing, will be presumed to continue until
the goods came into the possession of the last carrier, and that the
injury occurred on that line. This is on the principle that things
once proved to have existed in a certain condition are presumed to
have continued in that condition until the contrary is established
by evidence.' We think this doctrine is supported by public policy
BO important as to amount to necessity. With the immense traffic
and the resulting complicated methods of modern American rail-
roads, and the connection of these roads with one another, to im-
pose upon the owner of property passing over connecting lines the
burden of making affirmative proof that the loss occurred on a
certain one of these lines, would be practically relieving of liability
railroads handling freight as connecting lines; for the owner
could rarely make the required proof, and when he could make
it, in most instances the expense of doing so would be greater
than the value of the goods. The rule works no hardship to
the railroads as common carriers, because they receipt to one another
396 American State Reports, Vol. 101. [Minnesota,
and can easily trace loss or damage." To the same effect see the
opinion of Justice Johnson in Smith v. New York Cent. R. R. Co.,
43 Barb. 225, affirmed in 41 N. Y. 620.
"This is the only rule," observes Justice Thompson in Flynn v.
St. Louis etc. Ry. Co., 43 Mo. App. 424, "which offers any protec-
tion to the shipper, except in cases where the goods are lost in a
fire, shipwreck, railway accident, or in some catastrophe of a public
nature. Where, as in a case like the present, the goods are com-
mitted to the initial carrier, and placed in a car on the road of such
carrier, and the car is sealed and thus hauled through over the con-
necting roads to its final destination, and the goods are found broken
at the terminus, the shipper can seldom or never, from the nature
of the case, find out and prove what negligence in drawing the train,
or in shunting or switching the car, or in shunting other cars against
it, may have produced the injury. The rule above invoked would
leave him absolutely helpless and without remedy in nearly all cases.
.... No presumption of negligence can attach to either carrier,
except the last, in the absence of evidence that neither of such car-
riers delivered the goods to its connecting carrier in a damaged
condition; as to them the presumption of right acting exonerates
them. But this presumption of right acting is repelled, as to the
terminal carrier, by the fact of the goods having been delivered to
him in a damaged condition. The means of knowledge are within
his power, but not ordinarily within the power of the shipper, and
he may protect himself, if blameless, by showing that the goods came
into his hands in the same condition in which he delivered them;
and thus the responsibility may be shifted backward from one car-
rier to another, until it is fastened upon the one who is really to
blame. They, in undertaking for their gain as well as for the public
advantage, to make and execute through contracts of shipment, have
the power of fixing the responsibility where it belongs, and of ad-
justing the loss among themselves. The shipper has no such power."
b. Of Loss of Goods. — Where goods were delivered in good condi-
tion to the initial carrier, for shipment, but only a part of the con-
signment reaches its destination, the presumption is that the goods
reached the terminal carrier in the same good condition in which
they were delivered to the initial carrier, and that the loss is due to
the fault of the terminal carrier. The same rules that govern in the
case (if damaged goods are applicable here: Southern Express Co. v.
Hess, 53 Ala. 19; Savannah etc. Ry. Co. v. Harris, 26 Fla. 148, 23
Am. St. Kep. 551, 7 South. 544; Faison v. Alabama etc. Ry. Co., 69
Miss. 569, 30 Am. St. Rep. 577, 13 South. 37; Gynn Harper Mfg. Co.
V. Carolina Cent. R. R. Co., 128 N. C. 280, 83 Am. St. Rep. 675, 38
S. E. 894; Laughlin v. Chicago etc. Ry. Co., 28 Wis. 204, 9 Am. Rep.
493. But where the loss is total, and it does not appear that the
freight or baggage ever came into the hands of the terminal carrier,
June, 1903.] Beede v. Wisconsin Central Ry. Co.
397
the rule is otherwise, and the final carrier is not liable, unless a joint
contract, partnership, or ratification is shown: McDowell v. Joice, 46
111. App. 625; Eomero v. McKernan (App. Div.), 88 N. Y. Supp. 365;
Church V. Atchison etc. E. B. Co., 1 Okla. 44, 29 Pac. 530; Texas etc
E. E. Co. V. Berry, 31 Tex. Civ. App. 3, 71 S. W. 326.
c. Particular Kinds of Goods — Baggage. — Perishable goods, such
as butter and melons, shipped in good order, are presumed to reach
the terminal carrier in like good order; and if they are in a damaged
condition when they reach their destination, the burden is on the
last carrier to show that they were not in good condition when de-
livered to it: Forrester v. Georgia E. E. etc., 92 Ga. 699, 19 S. E. 811;
Beard v. Illinois Cent. Ey. Co., 79 Iowa, 518, 18 Am. St. Eep. 381,
44 N. W, 800, 7 L. E. A. 280. A prima facie case is made out against
the terminal cairier when fruit is shipped in good condition and
received by the consignee in bad condition: Missouri etc. Ey. Co. v.
Mazzie, 29 Tex. Civ. App, 295, 68 S. W. 56. See, too, the principal
case, ante, p. 390.
The same doctrine applies to shipments of livestock: Paramore v.
Western E. E. Co., 53 Ga. 383; Texas etc. Ey. Co, v. Barnhart, 5 Tex.
Civ. App. 601, 23 S. W. 801, 24 S. W. 331.
Where baggage is delivered to a carrier in good condition and is
checked through to its destination, the passage being over several
connecting roads, and at the end of the journey the baggage is found
to be injured, the presumption is that the injury occurred while it
was in the control of the last carrier, and the burden is on it to
explain that the loss was otherwise: Moore v. New York etc. E. E.
Co., 173 Mass. 335, 73 Am. St. Eep. 298, 53 N. E. 816; Strong v. Long
Island E. E. Co., 86 N. Y. Supp. 911, 91 App. Div. 442; monographic
note to Wood v. Maine Cent. E. E. Co., 99 Am. St. Eep. 363. As is
said in Montgomery etc. Ey. Co. v. Culver, 75 Ala. 587, 51 Am. Eep.
483: "From the necessities of trade and commerce, or of successful
competition, or from other causes, it has become common to establish
long routes of transportation by successive and connecting roads.
Under such circumstances, it would generally be difficult and often-
times impossible, for the owner to show on wliich road they were
injured. One of the roads is certainly responsible; and the last car-
rier has the means of showing the condition of the goods when re-
ceived by him. The safety and protection of the commercial and
traveling public require the recognition of the presumption, in the
absence of evidence, that the goods continued in the same condition
as when received by the first carrier, unless it may be exceptional
goods of a perishable nature, and casts on the discharging carrier,
who delivers them in a damaged condition, the burden of showing
their condition when received by him."
d. Goods Delivered by Expressmen. — The question has arisen as
to whether an expressman who delivers goods to a railroad company
398 American State Reports^ Vol. 101. [Minnesota,
for shipment over its line and through other carriers is a connecting
carrier within the meaning of the rules above considered. In Wil-
lett V. Southern Ky., 66 S. C. 477, 45 S. E. 93, the plaintiff delivered
an ornamental camphor wood chest to an expressman at Port Ches-
ter, New York, marked for Aiken, South Carolina. The chest was
delivered to plaintiff at Aiken in a damaged condition, with the crate
shattered. Action for the damages was brought against the last car-
rier having it in charge. The court said: "The next question is.
Was the expressman to whom the chest was delivered a connecting
common carrier in such a sense that delivery to him of the chest in
good condition raises the presumption that it was delivered to the
railroad at Port Chester in good condition! It is a matter of com-
mon knowledge that when one speaks of an expressman in a city,
he usually means an agent of one of the local express companies
whose business is to transport goods for all persons who offer them.
Such companies are common carriers: Piedmont Co. v. Columbus etc.
R. R. Co., 19 S. C. 365; Jackson Works v. Hurlbut, 158 N. Y. 34, 70
Am. St. Eep. 432, 52 N. E. 665; and when railroad companies receive
freight for shipment, as in this case, just as they receive it from other
railroads, we are unable to see the force of the position that it is not
to be regarded as a connecting carrier We hold, therefore, that
the presumption is that the chest was delivered to the railroad
company at Port Chester in good condition, and the presumption that
it was damaged by the last carrier stands, in the absence of any
proof to the contrary."
But where a drayman delivers a trunk to the initial carrier, and
another drayman delivers it to the owner at his destination, where
it is discovered that part of the contents are missing, the trunk
bearing no indication of having been tampered with, it is held in
Eingwalt v. Wabash R. E, Co., 45 Neb. 760, 61 N. W. 217, that until
some evidence is introduced showing that the trunk was not opened
or tampered with while in the possession of the draymen, the pre-
sumption will not arise that the goods were lost while in the posses-
sion of any of the connecting lines of railroads over which it had
been transported.
e. Shipments In Through Sealed Cars. — The rule that when goods
were received in good condition by the first carrier, but are damaged
when delivered to the consignee by the final carrier, the burden is
on it to show that the loss did not result from any cause for which
it was responsible, is not modified by the fact that the goods were
shipped in through sealed cars. This is the holding of the principal
case, ante p. 3'JO. Sec, also, Central K. K. v. Rogers, 6(5 Ga. 251; Cote
V. New York etc. R. R. Co., 182 Ma,ss. 290, 94 Am. St. Rep. 056, 65
N. E. 400; Leo v. St. Louis etc. Ry. Co., 30 Minn. 438, 15 N. W. 872;
Faison v. Alabama etc. Ry. Co., 69 Miss. 569, 30 Am. St. Rep. 577, 13
South. 37; Flynn v. St. Louis etc. Ry. Co., 43 Mo. App. 424.
July, 1903.] ScHEiFERT V. Briegel. 3£9
IV. Bebuttal of Presumptions.
The presumption of negligence against connecting carriers under cer-
tain circumstances, which has engaged our attention in the foregoing
pages, is, of course, not conclusive. The initial carrier, as to a consign-
ment that never reaches its destination, may shift responsibility by
showing that it delivered the goods to its connecting line; and the ter-
minal carrier, as to goods that it delivers at their destination in a dam-
aged condition may shift responsibility by making proof that it recived
them in a damaged condition: Central E. E. etc. Co. v. Eogers, 57 Ga.
336; Susong v. Florida etc. E. E. Co., 115 Ga. 361, 41 S. E. 566; Fox v.
Wabash E. E, Co., 38 N. Y. Supp. 88, 16 Misc. Eep. 370; International
etc. Ey. Co. v. Foltz, 3 Tex. Civ. App. 644, 22 S. W. 541. In an action
against a terminal carrier for injuries to stoves while in transit, evi-
dence that they were improperly packed in the car by the shipper
or initial carrier is sufficient, with evidence of proper handling of
the sealed car by the defendant while in its custody^ to rebut the
presumption of negligence: Texas etc. Ey. Co. v. Kelly (Tex. Civ.
App.), 74 S. W. 343. Under a statute declaring that the last carrier
which receives goods "as in good order" shall be responsible to the
consignee for any damage to them, such carrier cannot show that the
goods were not received in good order by giving a receipt which is
wholly silent on the question; Georgia E, E. etc. Co. v. Forrester, 96
Ga. 428, 23 S. E. 416.
SCHEIFERT v. BEIEGEL.
[90 Minn. 125, 96 N. W. 44.]
BOUND AEIES Where Water of Lake Recedes. — When an ir-
regularly shaped, non-navigable lake without outlet or inlet drys up,
it is not proper to divide the bed among riparian ownerg bv estab-
lishing central points and lines, and extending the side lines of ripar-
ian tracts from where they cross the meander line to such points and
lines, (pp. 402, 40G.)
BOUNDARIES Where Water of Lake Recedes.— When the
waters of a non-navigable lake recede and disappear, each riparian
proprietor owns that part of the lake bed included in the triangle
made by projecting lines from the points where the side division
lines respectively cross the marginal line to the center of the lake;
but if the lake is of irregular shape and without outlet or inlet, the
inequalities occasioned by the broken shore line should be equitably
adjusted between the contiguous owners by disregarding the irregu-
larities, or by treating the lake as composed of separate bodies of
water, (pp. 406, 407.)
400
American State Reports, Vol. 101. [Minnesota,
Action to determine boundaries between riparian owners, the
lake in front of whose property had gone dry. The following
are the plats referred to in the opinion :
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July, 1903.]
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SCHEIFERT V. BRIEQEL.
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George A. McKonzie, "W. H. Leeman, John Lind and A.
Ueland, for the appellants.
Albert L. Young, for the respondent.
^^'' LEWIS, J. Swan Lake, in Sibley county, -meanflercd and
non-navigable, originally contained several hundred acres, oc-
cupying portions of sections 17, 18, 19 and 20, townsnip 112,
range 31. For a gn^at many years it has been gradually dry-
ing up, and at the time of the commencement of this action was
practically dry land, and the various shore owners commenced
this proceeding for tlie purpose of partitioning tlie bed of
^-^ the lake. The trial court divided the land in accordance
with tbe plat, Figure 1, and for the purpose of division estab-
lished three central points. C, D, and E, connecting tbem by
center lines, marked Tipon t1ie plat, 1 C. L., 2 C. L., and 3 C. L.
Am. St. Rep. Vol. 101—26
403
American State Reports, Vol. 101. [Minnesota,
Having established these center points and center lines, the
court divided the land among the several owners by extending
the side lines of the several tracts from the point where they
crossed the meander line to points C, D, and E, and to points
on the center lines as indicated by the plat. Certain of tlie
property owners complain of the result upon the ground that
the division is unequal. Some of them contend for the rule
that the dividing lines should radiate to the center of the lake;
others insist that it is not practicable to establish a center for
division in a lake of this character, but that it was proper to
adopt center lines. The latter, however, are not satisfied with
the center lines established by the trial court, but suggest cer-
tain modifications, and propose that, with proper center linos
established, the side division lines of the several fractions be
extended at right angles to the center lines.
The question presented, then, is, Wimt is the proper mctliod
of dividing the bed of the lake under such circumstances?
In Lamprey v. State, 52 Minn. 181, 38 Am. St. Rop. 541,
53 N. W. 1139, 18 L. R. A. 670, it was stated that shore owners
take to the center of the lake, but in that case tlicre was under
consideration merely the question whether the sliore owner was
entitled to that portion of the land exposed between the meander
line and the water, which had perceptibly receded, as against
a patentee of the land from the United States government, and
tlie question as to wliat should constitute tlie center of the lake,
and when that method should be varied or strictly applied, was
not before the court.
In Shell V. Mattcson, 81 "Slum. 38, 83 X. W. 401, the only
question involved was the constitutionality of Laws of 1897,
page 478 (chapter 257), and that act was held \;nconstitutional
upon the ground that the riparian owners held title to the
center of tlie lake.
In ]lanson v. Ix'ice, 88 ^Minn. 273, 02 X. W. 082, the inquiry
was wlii'tlicr or not one of the owners sliould be restricted tu
tlie full government subdivision in whi^-h the fraction of his
land was located, and be cut olf from the lake by extending
tlie land of an adjoining shore owner. In the discussion of
that question, in which the court declined to follow the Wis-
consin rule, it was said that each owner was entitled ^^'^ to the
land between the shore and the center of the lake. But in that
case the meander line as drawn hv the government survey was
incorrect, and the dispute was in dividing up the land between
the meander line and the lake projjcr.
July, 1903.] ScHEiFERT V. Briegel. 403
The rule has long been established that riparian owners upon
a stream take to the center of the current: Schurmeier v. St.
Paul etc. E. E. Co., 10 Minn. 59 (82), 88 Am. Dec. 59; Olson
V. Thomdike, 76 Minn. 399, 71 N. W. 399. But we have no
knowledge of any attempt to apply this rule to lakes, where
there is no inlet or outlet. It would seem reasonable that where
a lake is long, and comparatively narrow, it may be treated
as a river, and a center line established from one end of the
lake to the other, which should be considered the thread of the
stream. Such rule could also, for the same reason, be adopted
in case of irregularly shaped lakes, where there had been an
inlet and outlet, and through which there might have been
either a real or theoretical current, which would be deemed
to be the center line. In such cases the various owners may be
said to have purchased their property with a view to the original
situation.
In the case before us the evidence does not disclose whether
originally, or in times of high water, there was an inlet and an
outlet to the lake, nor does it appear whether there is a gradual
slope toward the center on all sides of the lake. The theory
upon which the court proceeded was that the method adopted
accomplished a more equable division among the various owners
than any other system, but the manner in which the waters
receded from time to time was not taken into account. Because
of the irregular shape of the lake, a division made by running
the side lines of the various fractions to the center would be
imequal, and unjust to the owners of those fractions peculiarly
situated, and apparently for this reason the central point princi-
ple of division was rejected. It is apparent that in the method
adopted tliere was an attempt to combine two systems — one
running the side lines to the center points of the lake, and the
otlicr to run them to center lines, which, theoretically, were
the tliread or middle of the stream.
The application of the center line principle to this lake
presents very serious difficulties. In the first place, we discover
no rule according to which the center lines were estal)lis]icd,
except that they were run from ^'^^ the three principal points,
T. D, and E, Figure 1. to the center point C, as nearlv as pos-
sible equidistant from the adjacent shore. The question arises
at once, what better reason is tliere for running a center line
from F, in the manner indicated, than from the bav in lot 11,
section 18. or from the bay in lots 8 and 9, section 18 ? And,
if the center line may properly begin at the shore line F, wliv
404 American State Reports, Vol. 101. [Minnesota,
should not the center line D he extended to the shore at the
west line of lot 4, section 20^ and why should not the center
line terminating at E be extended to the shore between lots
3 and 4, or between 2 and 3 ? It is evident that these lines
were drawn and center points located without reference to any
natural condition of the original lake, either in respect to depth
or natural current, and, so far as we are able to see, resulted
in arbitrary division without regard to the legal rights of the
owners.
There is no doubt that the division must be made accord-
ing to the principle applicable to accretions or relictions, as
noticed in Hanson v. Eice, 88 Minn. 273, 92 N. W. 983. As
before stated, where the shores of a lake are comparatively
even, and the lake is either round or long, few difficulties arise
in applying one of the prin(^iples of division above mentioned ;
but where the shore line is uneven, and the body of water of
an irregular shape, the difficulty comes in avoiding a conflict
of different interests.
In the New England states many questions have arisen in
reference to the division of lands which have accumulated along
the seashore between low and high water mark, and the courts
have aimed to establish a principle which would result in giv-
ing the riparian owners an equal division in the accumulated
soil. For instance, in Gray v. Deluce, 5 Cush. 9, in dividing
the flats wliich liad accumulated in a cove between hiiili and low
water, a base line was run across the moutli of tlie cove, and
parallel linos were drawn at right angles with tlie Ijase lines
from the ends of the division lines of the channel to low-water
mark. ]n that case the flat to be divided was of the same width
as tlie channel, and the result was that each proprietor was
given an equal division, and the division lines could therefore
be extended without variation. But in the case of Eust v.
]5oston ]\Iill Corp., 6 Pick. 158, the cove was circular, and the
distance across its mouth shorter than tlie shore line of the
upland, and the division was made by causing the side lines
to converge upon the hnfio line at the mouth of the cove so as
to divide the accumulation proportionately. Again, in the case
of Emerson v. Taylor, ^'^^ 9 Greenl. (Me.) 42, 23 Am. Dec.
531, there was a conflict of interests, and the base line was
drawn between the two points where the side lines of division
crossed the high-water mark, and from such base line, at right
angles to it, lines were extended to low-water mark, and, the
shore being on a curve, the various extensions thus made left
July, 1903.] ScHEiFERT V. Beiegel. 405
a surplus or loss, which was divided evenly between the adjoin-
ing parcels. A review of many of the New England cases
upon this subject will be found in a note to Northern Pine
Land Co. v. Bigelow Co., 21 L. R. A. 776. In all of them
the courts were dealing with the space left bare by the receding
waters, or with land which had accumulated, the main body
of water being still in existence.
The principle running through the decisions is that the
riparian owner actually owns that part of the accretion which
lies between the points where the division lines cross the margin
in a straight direction to the center of the channel, and, if there
is no channel, then converging to a common center. Cases
have arisen where, from the very nature of the situation, these
general rules could not be strictly applied. x\s stated in Walker
v. Boston, 3 Cush, 1, 22 : "Many coves, inlets, and estuaries
of rivers are so irregular and various in outline, and so traversed
by crooked and meandering creeks and channels, from which
the sea docs not ebb, that it is utterly impossible to apply to
them any of the rules which have been applied to other cases."
The difficulty to be anticipated in dividing up the bed of a
lake where there is no center line is stated by Justice Camp-
bell in Lincoln v. Davis, 53 Mich. 375, 390, 51 Am. Eep. 116,
19 N. W. 103: "In carrying out lines of ownership in narrow
streams, it is easy to find the general course of the stream,
and to draw lines perpendicular to that course from the term-
inal shore lines. But on lakes all lines from the shore tend
to converge in some central part of the lake, and, while irregu-
larity of shape prevents drawing them to a common center, they
must all, if protracted, cross each other in a perplexing way.
The rule adopted in such waters, where the whole surface could
be appropriated, has always been to divide the water area in
proportion to the shore frontage, and never to attempt any di-
vision by lines run from the shore, except over such parts of
the lake as are substantially adjacent to the shore. In some
cases, by a fair partition, a shore owner would, by his extent
of shore ^^^ line, obtain a share beyond the ceiiter. But it
seems impossible, if the whole water is to be regarded as divided
up, to reach a division without some proceeding in the nature
of a partition^ which will fix the various possessions."
And again, in the case of Jones v. Lee, 77 Mich. 35, 40, 43
N. W. 855, the same learned justice, in discussing the general
question, states: "It appears clearly enough in the present
case that, while there is a considerable frontage facing north-
406 American State Reports, Vol. 101. [Minnesota,
west or southeast, the lake being longest in that direction, there
must also be large end frontages which look up or down the lake
perpendicularly, or nearly so, to any line across from bank to
bank, at most places along the shores. If this body of water
were not navigable, and if all its waters could in any way be
apportioned among the riparian proprietors for any lawful pur-
pose, it is evident that it could not be done by reference to any
filum aquae, or middle thread, but must be done by some rule of
proportion, which probably could only be got at by some parti-
tion proceeding, inasmuch as such waters are common for all
ordinary uses."
And in Hardin v. Jordan, 140 U. S. 371, 403, 11 Sup. Ct.
Eep. 808, 35 L. ed. 428, the court says : "If there should arise
any question between the plaintiff and other riparian owners
of lands situated on the margin of the lake as to the convergence
of the side lines of the plaintiff's land in the lake, it can be
disposed of by the parties themselves by a resort to equity, or
to such other form of procedure as may be proper." And in
referring to the difficulties of applying the general rules of di-
vision it was said: "Where a lake is very long in comparison
with its width, the method applied to rivers and streams would
probably be the most suitable for adjusting riparian rights in
the lake bottom along its sides, and the use of converging lines
would only be required at its two ends."
To return to a consideration of the lake bed in question, elim-
inating the center line theory for the reason already stated, we
are unable to apply any principle of ownership to the disputed
land except the one already recognized by this court in the de-
cisions above noted ; i. e., that the several riparian proprietors
own that portion of the increase immediately adjacent to and
included in the triangle made by projecting lines from the points
where the side division lines respectively cross the marginal line
to tlie center of the lake. Had the waters only *^^ receded a
few rods from the marginal line, there would be little difficulty
in dividing up the strip of land thus laid bare; but in propor-
tion as tlie water receded toward the center the difficulties would
increase, and, now that the water has entirely disappeared wo
find the side lines converging upon one another to such an ex-
tent that the rule cannot be strictly applied.
Whatever inequalities or injustice may arise from these con-
flicting interests caused by the irrc.srularity of the shore must
be solved upon some equitable basis which will, as nearlv as
July, 1903.] ScHEiFERT V. Briegel. 407
possible, give to each proprietor that portion of the increase
which belongs to him. In the first place, what is the center of
the lake bed? Is it the center of the figure (lake bed), or is it
the deepest portion to which point the waters gradually re-
ceded and at last disappeared? The latter might coincide with
the former, but, where the two do not coincide, which should
control? If the waters had receded, leaving some of these
small bodies of water at different points in the original lake,
division might be made upon the theory that they constitute in-
dependent lakes, to be treated as central points. But, as a gen-
eral rule, such conditions do not exist, and the center of the
figure must be accepted as the common center.
An examination of the plat Figure 2, where a central point,
C, is assumed, discloses that, if a division be made according to
this principle, lot 1, section 20, will have an advantage over lot
2, which lies immediately south, on account of the peculiar for-
mation of the point or projection of land which extends into the
lake. The same thing occurs in lot 4, section 17, and lot 10,
section 18, the latter having the advantage, and a difficulty arises
as between lots 10 and 11, section 19. The chief difficulty, how-
ever, is in reference to lots 1, 12, and 14, at the western end of
the lake.
Commencing with lots 1 and 2, in section 20, lot 1 should not
be permitted to have the advantage given it by the projection
into the lake at the intersecting line between 1 and 2. The in-
equality occasioned by this irregularity in the shore ought to be
divided between the parties immediately affected. It is a fair
adjustment as between the two lots that such projection be ig-
nored, and the division line running to the center point start,
not at the marginal line, but at the point where the division line
of lots 1 and 2 crosses a line drawn from the point where the
northerly side line of lot 1 crosses the marginal line to the point
134 where the south line of lot 2 crosses the marginal line as
indicated on Figure 2. This would result in giving to lot 2
a slight portion of the increase directly in front of the south-
west corner of lot 1. The same principle applied to lot 4, sec-
tion 17, and lot 10, section 18, makes an equable division, as
indicated on the plat. In respect to lots 10 and 11, section 19,
the inequality may be adjusted as indicated on the plat. This
arrangement gives lot 10 all it is entitled to, and gives lot 11 no
credit for the small bay of the lake where the dividing line be-
tween the lots crosses the marginal line.
408 American State Keports, Vol. 101. [Minnesota,
Lot 12, section 18, bordering on tlie southwest corner of the
lake, had a considerable water frontage, but, on account of the
peculiar shape of the point of land at the southerly part of lot
11, the division line between lots 11 and 12 crosses the marginal
line at a point too far south to leave any considerable portion
of the lake bed adjacent to lot 12, and the interests of lots 1,
11, 12, and 14, conflict in any attempt to divide up the bed im-
mediately in front of those lots. There are two ways of adjust-
ing this inequality : 1. By disregarding the point of land at the
southerly end of lot 11, and dividing the space on the principle
applied to lots 1 and 2, section 20; and 2. Treat the bay border-
ing on lots 1, 14, and 12, west of the dotted line A, B, as an in-
dependent lake. The latter method might very properly be ap-
plied if, as the waters receded, some portion were cut off from
the main part of the lake by a ridge across the neck of the bay,
or if there were a deep central point where the water remained
last. The evidence is silent on the subject, and we can only
assume that such condition did not exist, and that the lake bed
slopes gradually from west to east. However, even if such were
the case, this bay may be treated by analogy as a separate lake,
and by so doing the interests would appear as indicated in the
plat Figure 2, assuming D to be the center point. Tliis arrange-
ment leaves the irregular tract A, B, D, C, less the portion of
lot 11 within its borders, the property of the owners of lots 1,
14, and 12, which should be apportioned between them by the
court in accordance with the acreage acquired by each in the
bay west of the dotted line A, B.
We are aware that in applying tliis method of dividing the
lake bed it will be a matter of some difficulty to find the exact
center points. They may be located by the interested parties
by common consent, '^^ and, if they cannot agree, a compe-
tent surveyor can ascertain them by actual tests, or by tlie ap-
plication of a mathematical rule wliich is used for the purpose.
It is also apparent that some of the divisions of land thus allot-
ted would be of no practical value on account of their peculiar
shape. Xo doubt tbe small tracts would be purchased by the
larf'^er holders, or be otherwise adjusted to make the land prac-
tically useful.
The method of adjustment here suggested may not be suitable
for the division of all irregular lakebeds, but we have aimed to
outline a plan which will give tbe riparian owners as near as
possible what is theirs by law. I>et it bo understood that the
effect of this decision is not to direct a division of tlie lake in
July, 1903.] BoAEDMAN V. Howard. 409
question according to figure 2. "We have attempted only to lay
down certain principles which may be applied in case the facts
shall prove to be as we have assumed them to be. Upon a new
trial evidence should be taken as to the history of the lake, and
the division worked out as near as may be in accordance with
the principles herein defined.
Order reversed and new trial granted.
Accretions and Alluvion are discussed in the monographic notes to
Hagan v. Campbell, 33 Am. Dec. 276-281; Coulthard v. Stevens, 35
Am. St. Eep. 307-313; and consult, also, the case of Widdecombe v.
Chiles, 173 Mo. 195, 73 S. W. 444, 61 L. R. A. 309, 96 Am. St. Rep.
507, and cases cited in the cross-reference note thereto. As to the
manner of fixing boundary lines when the waters of a lake recede or
disappear, see Carr v, Moore, 119 Iowa, 152, 97 Am. St. Rep. 292,
93 N. W. 52; Noyes v. Collins, 92 Iowa, 566, 54 Am. St. Rep. 571, 61
N. W. 250, 26 L. R. A. 609; Fuller v. Shedd, 161 111. 462, 52 Am.
St. Rep. 380, 44 N. E. 286, 33 L. R. A. 146; Hammond v. Shepard, 186
111. 235, 78 Am. St. Rep. 274, 57 N. E. 867.
BOAEDMAN" V. HOWARD.
[90 Minn. 273, 96 N. W. 84.]
LANDLORD AND TENANT — Returning Premises in Good
Order. — A provision in a lease that the tenant shall return the prem-
ises in as good condition as when received, "loss by fire, inevitable
accident, or ordinary wear excepted," obligates the tenant, upon the
termination of the lease by agreement after a fire, to remove the
debris and rubbish resulting from the partial burning of his goods,
(p. 411.)
Stevens, O'Brien & Albrecht, for the appellants.
Henry C, James, for the respondents.
^'''^ LOVELY, J. This is an action to recover unpaid rent ;
also, for expenses of the landlord incurred in removing property
damaged by fire and left on the premises by the tenant after
surrendering the same. The cause was tried to tlie court, wlio
made findings of fact, and held as a conclusion of law that plain-
tiffs were entitled to recover a portion of one month's rent; also,
a specific sum for expenses incurred Iry the landlord in taking
away injured goods of defendants after they had quit. This
appeal is from an order denying a new trial.
The following facts are embraced in the findings of the court
and are supported by the evidence: Plaintiffs leased a building
410 American State Eeports, Vol. 101. [Minnesota,
in the ^^* city of St. Paul to defendants for three years from
January 1, 1901, at a stipulated monthly rental. The tenants
took possession, and occupied it for the storage and sale of house-
hold furniture. On November 19th following, the premises be-
came untenantable by reason of a fire occurring without fault
of eitlier party. On the succeeding December 1st, plaintiffs
entered without opposition by defendants, and engaged in re-
pairs to make the place serviceable for reoccupation. During
the month, defendants were permitted to take out their damaged
property, and continued to do so until the first of the next Janu-
ary, when they informed plaintiffs that they had entirely re-
moved therefrom and surrendered the premises. After the
building was given up by the tenants, there still remained therein
a large quantity of injured furniture and rubbish of no value,
but distinguishable as having been a part of defendants' stock.
This worthless material was removed by the plaintiffs at their
own expense, to facilitate repairs and their future use of the
premises. The court found the reasonable amount of this ex-
pense, and that defendants were liable therefor.
By the terms of the written lease it was provided that upon
its expiration, or when terminated by forfeiture or otherwise,
the tenants would yield up the premises in as good condition
as when the same were entered, "loss by fire, inevitable accident,
or ordinary wear excepted.'' There are other provisions in the
lease relative to the surrender of the premises upon notice, as
well as for the removal of offal and garbage, which were dip-
cussed on the argument; but under the view we have adopted
these portions of the rental contract do not affect the result, and
need not be considered.
There is no controversy over the amount found to be due as
unpaid rent for a part of the month of Xovember, but it is in-
sisted that, after defendants had removed the portion of their
stock which they took away in December, they mierlit without
breach of duty allow a considerable portion to remain upon the
surrender of the building. A reasonable construction of the
facts found by the trial court authorizes the view that the rela-
tions between the landlord and tenants were actually terminated
by agreement on December 1st, when the landlord, desiring to
take possession of his property to make repairs, entered on that
day, and that the tenants were licensed by the landlord there-
after to l>e there for the purpose of taking away their property,
and *'''* continued to do so until it became apparent that the
debris and rubbish resulting from the partial destruction of the
Oct. 1903.] KiRKEBY V. Erickson. 411
injured furniture wliich had been their property was valueless,
when they ceased to remove it, but left it in the building, thus
imposing upon the landlord this burden.
"We have no doubt that the provision in the lease for the sur-
render of the premises by the tenants in as good condition as
when received applies to the building itself. The exception re-
lating to injury of the building by fire, while it would excuse
the tenants from repairing or rebuilding, would not justify them
in imposing burdens upon the landlord arising strictly from the
tenants' occupancy and use of the premises; hence the injury
by fire to the goods of defendants was a misfortune they had to
assume themselves. A part of this was the injury to the furni-
ture still belonging to them, and which, under the terms of the
lease as well as upon reasonable considerations of justice, it was
their duty, rather than the landlord's, to remove. It would fol-
low that the tenants, under the privilege to take away their
goods, could not enjoy it so far as beneficial, and leave a part
of their damaged property in the building to encumber plain-
tiffs' possession, and the expenses incurred by the landlord in
removing the rubbish which defendants left and declined to
take away was a legal obligation against them.
Order affirmed.
If a Lease Provides for a Return of the premises ''in as good con-
dition as it now is, usual wear excepted," the tenant is not answer-
able if the property is destroyed, without fault on his part, during
the term: Seevers v. Gabel 94 Iowa, 75, 58 Am. St. Eep, 381, 62 N-
W. 669, 27 L. E. A. 733.
KIRKEBY V. ERICKSON".
[90 Minn. 299, 96 N. W. 705.]
STATUTE OF FRAUDS. — A Sale of Wild Grass growing upon
the vendor's land is within the statute of frauds, and a written con-
tract cannot be dispensed with. (p. 413.)
Oluf Gjerset, for the appellant.
C. A. Fosnes, for the respondent.
2»» COLLINS, J. From the findings of fact, which stand
unchallenged in this court, it appears that the plaintiff, owner
of a certain quarter section of land, entered into an oral contract
with the defendant for the sale of wild grass then growing
412 American State Reports, Vol. 101. [Minnesota,
thereon, the agreed price being seventy-five dollars, no part of
which has been paid. Afterward the defendant entered upon
the land, and cut one swath of this grass, about five feet wide
and forty rods long. The defendant did not remove the cut
grass, nor did he again enter upon the premises. No part of
the remainder was cut by either plaintiff or defendant. The
court below held that plaintiff could not recover the amount
agreed upon, and its judgment will have to be affirmed.
The grass which was the subject of the oral contract was a
part of the plaintiff's real estate, and the agreement was void,
because it attempted to create an estate in land, and was not in
writing, as required by General Statutes of 1894, section 4215.
There has been a great deal of discussion ^^^ upon this sub-
ject, and the courts of last resort are greatly at variance, not
only as to the rule to be applied, but also as to the reason for
holding one way or the other. But in this particular case we
simply have to ascertain whether the alleged contract of pur-
chase involved, either by express stipulation or by fair implica-
tion from the circumstances, an agreement that the vendee
should have the right to enter upon or occupy the vendor's land
during a definite or indefinite time after the bargain. Where
such an agreement is a part of the transaction it seems clear that
an interest in land is contracted for and agreed to be given.
Such an agreement comes within the statute of frauds, and a
written contract cannot be dispensed with: Brown's Statute of
Frauds, sec. 257a; 2 Taylor on Evidence, sec. 952. See, also,
1 Benjamin on Sales, sec. 121; 1 Mcchem on Sales, sec. 341.
At common law, grasses growing from perennial roots are
regarded as fructus naturales, and, wliile unscvered from the
soil, are considered as pertaining to the realtv: Sparrow v.
Pond, 49 Minn. 412, 32 Am. St. Eep. 571, 52 N. W. 36, IG L.
R. A. 103. We have no statute changing this rule, except Gen-
eral Statutes, section 54G4, which has no relevancy here. In
Erickson v. Paterson. 47 :\rinn. 525, 50 X. W. G99, it was held
that growing crops, fructus industriales, pass with the land upon
the conveyance tliereof without express mention, unless prop-
erly reserved: See, also, Kammrath v. Kidd, 89 Minn. 380, 99
Am. St. Rep. G03, 95 X. W. 213. This is because for the pur-
poses of sale they are regarded as part of the real estate.
In this particular case the right of the defendant to enter
upon plaintiff's premises for the purpose of cutting and remov-
ing the grass was implied from the fact of the sale. This gave
the former exclusive possession of the land upon which the grass
Oct. 1903.] KiRKEBY V. Eeicksox. 413
grew for the purpose of cutting and removing it; a limited pos-
session to be sure, but sufficient for him, in case the contract
had been valid, to maintain an action against any person enter-
ing upon the land and interfering with his right to cut and re-
move the grass : Crosby v. Wadsworth, 6 East, 602. Such a case
must be distinguished from one where the vendor of the prop-
erty sold is to sever it from the soil himself. Verbal sales of
that character have frequently been upheld as not within the
statute. It is clear that this agreement, as found by the court,
was for the sale of an interest in land, and came within the pro-
hibition of the statute.
^^^ But, even if it could be held that the contract was for the
sale of personal property, the price agreed upon exceeded fifty
dollars. There being no written note or memorandum of the
contract, no acceptance of the goods, and no payment of any
part of the purchase money, it came within the provisions of
General Statutes of 1894, section 4210, and was void.
The plaintiff's counsel suggests that when the defendant en-
tered upon the land and cut a small part of the grass there was
a sufficient compliance with the statute. But by this act alone
he did not accept or receive any part of the property attempted
to be sold.
Judsrinent affirmed.
The rrinripnl Case is cited in Kileen v. Kennedy, 90 Minn. 414, 97
N. W. 126, where it is held that a contract for the purchase of stand-
ing timber is a contract for an interest in lands, is within the statute
of frauds, and must be in writing. For other authorities on the
question of whether a sale of timber is within the statute, see Sey-
mour V. Cushway, 100 Wis. 580, 69 Am. St. Eep. 957, 76 K W. 769;
Emerson v. Shores, 95 Me. 237, 85 Am. St. Eep. 404, 49 Atl. 1051.
It is held in Smith v. Leighton, 38 Kan. 544, 5 Am. St. Eep. 778, 17
Pae. 52, that an agreement in writing is necessary in the sale of
growing grass. See, also, Mighell v. Dougherty, 86 Iowa, 480, 41
Am. St. Eep. 511, 53 X. W. 402, 17 L. E. A. 755;" Aldrich v. Bank of
Ohiowa, 64 Neb. 276. 97 Am. St. Eep. 643, 89 N. W. 772,. 57 L. E. A.
920; Kammrath v. Kidd, 89 Minn. 380, 99 Am. St. Eep. 603, 95 N".
W. 213.
414 American State Reports, Vol. 101. [Minnesota,
SULLIVAN V. MINNEAPOLIS, ST. PAUL AND SAULT
SAINTE MAEIE RAILWAY COMPANY.
[90 Minn. 390, 97 N. W, 114.]
BAILBOADS — Defective Station Platform. — A woman who
goes to a railway station in the evening after business hours, the
depot being closed, the lights extinguished, and the agent gone, to
find her husband, who has gone there to attend to some shipping,
assumes the risk of the platform being unsafe, (p. 416.)
Alfred H. Bright, J. IL Wendell and C. A. Pidgccn, for the
appellant.
F. E. Latham and James C. Tarbox, for the respondent.
2^^ LEWIS, J. This action was brought to recover damages
for personal injuries occasioned by stepping into a hole in the
depot platform of appellant ^^^ company. At the close of the
evidence defendant moved for a verdict upon the ground that
plaintiff had failed to prove a cause of action, because she had
no right to be upon the depot platform at the time, and be-
cause it conclusively appeared from the evidence that the com-
pany was not responsible for the defect in the platform. The
motion was granted, and plaintiff moved for a new trial upon
the ground that the verdict was not justified by the evidence,
and that the court erred in rejecting certain testimony offered
by plaintiff as to the condition of the plank which had been
broken or removed, causing a hole. From an order granting
a new trial, appeal was taken.
It does not appear upon wliat ground the court granted the
motion, but, if it conclusively appears from the evidence that
plaintiff cannot recover in any respect, it will be unnecessary to
consider the second ground. Plaintiff was a married woman,
twenty-nine years of age, and resided in the village of Maple
Lake, with lier husband, wlio was in the butclier business. The
depot is situated about a block from the butcher-sliop, and at
about 8 :20 on the evening of October 8, 1901, her husband
left the sliop, and went toward the depot, for the purpose of
attending to the shipping of a carload of stock, at which time
the station was open and lighted and the lamp on the station
platform was burning. The regular west-bound passenger train
arrived and departed some time between 8:20 and 8:28. Plain-
tiff's husband reached the depot within ten or fifteen minutes
after the train departed, was tliere about five minutes trans-
Not. 1903.] Sullivan v. Minneapolis etc. Ry. Co. 415
acting business with the agent, and then went to the stock-
yards in the vicinity; and after his departure the agent closed
the office, put out all the lights, and went home. Soon after
the agent went away, plaintiff left the butcher-shop and went
to the depot for the purpose of finding her husband and getting
the keys from him that she might lock up the shop. She
was accompanied by a younger sister, who testified that plain-
tiff went upon the platform in the usual way, walked along
toward the door of the depot office, and stepped into the hole,
resulting in the injuries complained of; that she helped her
out, and in about^ ten minutes assisted her home. Plaintiff
testified that there were no lights, and it was very dark. From
these undisputed facts it is clear that, although the plaintiff
went to the depot expecting to find her husband there, she
knew the train had come and ^^^ gone, and as she approached
the depot she saw that the lights had been turned out.
In the case of Klugherz v. Chicago etc. Ey. Co., 90 Minn.
17, ante, p. 384, 95 N. W. 586, it was held that, if respondent
went upon the station grounds in good faith, in pursuance of
the purpose of meeting a person for business consultation, who
he had reason to believe was to take a train, the company owed
him the duty of ordinary care in condiicting the unloading
operations. It was quite clear in that case that, if respondent
had gone to the depot about train time for the purpose of tak-
ing the train or accompanying one who wa? to take it, and was
injured, he would not be a trespasser, and would be entitled to
recover; but a serious question was raised whetlier liability
arose under the peculiar circumstances of the injury and the
time he visited the station. It was held that there was no rea-
sonable distinction between visiting a depot for the purpose of
taking a train or accompanying a personr boarding a train and
going to the depot to have a business conference with one a1)0ut
to depart or arrive. It was also considered that a mistake of
an hour as to the time of the arrival or de]>arture of the train
would not, of itself, relieve the railroad company.
But there is a clear distinction between the facts in that
case and the one now before us. There the accident occurred
in the da}'time, and tlicre was nothing to notify the visitor that
the premises were intended to be closed to the public at that
particular time. Here it was past business hours, the lights
were turned out, and the premises enveloped in darkness.
There was no act on the part of the company to lead plaintiff
to believe that it was holding its place of business open to the
416 American State Reports, Vol. 101. [Minnesota,
public, or even to suggest that her husband was transacting
business in the depot office, except the fact that some time prior
she had seen him go in that direction. On the contrary, there
was everything to notify her that the place was closed. In
the absence of some invitation, express or implied, to go upon
the premises at that time of night, plaintiff assumed the risk
consequent upon her movements. There is nothing to suggest
that the company was guilty of gross negligence in the care of
its platform and in permitting the hole to remain unprotected.
For these reasons the first order of the trial court was right,
and the order granting a new trial was error.
Order reversed.
While a Railway Company cannot be expected to be continuously on
its guard as against loiterers and trespassers, yet it should
anticipate that its station-house and depot grounds may be used
as a place of meeting by people for various lawful purposes
at or about train time: Klughez v. Chicago etc. Ry. Co., 90 Minn. 17,
ante, p. 384, 95 N. W. 586.
PERRY V. TOZER.
[90 Minn. 431, 97 N. W. 137.]
EMPLOYMENT of Infant in Violation of Law.— If Injury
results to an infant employe in a sawmill from a failure properly
to guard dangerous machinery, his employer, who has not procured
a certificate from the school authorities permitting the employment,
as required by statute, is prima facie liable in damages, (p. 423.)
DAMAGES FOR PERSONAL INJURY— When not Excessive.
A verdict of seven thousand seven hundred and fifty dollars for in-
juries received by a boy of fourteen years requiring the amputation
of his right leg below the knee is not excessive. (p. 424.)
Barrows & Morrison, for the appellant.
Arthur W. Selover, for the respondent.
*•*** LOVELY, J. Action to recover for personal injuries
sustained by a boy of fourteen years while employed in defend-
ant's sawmill at South Stillwater. ^'"^^ There was a verdict
for plaintiff, '^i'his appeal is from an order denying defendant's
motion for judgment notwithstanding the verdict or a new
trial in the alternative.
The evideucf; tenderl to show that plaintiff had worked in
defendant's mill tending a "alah conveyor" twenty-four days
Nov. 1903.] Perry v. Tozer. 417
when the accident occurred. The purpose of the slab conveyor
was to transmit boards to two circular saws, where they were
to be cut, and from thence carried to a place below, where
pieces that could be used for lumber would be picked out by
other servants. Part of the working machinery connected with
the slab conveyor consisted of two metal sprocket wheels, the
upper one fastened to a shaft near the top of a table where
the saws were set, adjoining which plaintiff was required to
stand, the surface being at his breast. The lower sprocket
wheel was adjusted on a shaft three feet below the upper one.
Both wheels were kept in motion by chain belting, whereby the
attached shafts and saws thereon were propelled with great
velocity. It was the plaintiff's duty to stand upon a platform
adjacent to the lower wheel, which was covered to some ex-
tent by a wooden box. He was required to oil the machinery,
handle the levers which stopped the movement of the sprocket
chains and shafts, and keep pieces of wood from accumulating
in front of the saws to prevent their being clogged. The neces-
sity for removing the refuse wood from the front of the saws
was quite frequent, and required plaintiff to use a stick, and
to reach forward over the table to accomplish this purpose.
"When the accident occurred plaintiff was standing with his
feet near the guard of the lower sprocket wheel. In attempting
to remove pieces of refuse wood which were clogging the saws,
he, under his claim, inadvertently intruded one of his feet into
the rapidly moving gearing which was behind the outer surface
of the box covering. It was caught and pulled into the machin-
ery, inflicting injuries which required the amputation of his
right leg below the knee, with severe consequent pain and suf-
fering. There was a general verdict for plaintiff. Special
questions were submitted at request of defendant, with answers
favorable to plaintiff.
The alleged negligence for which plaintiff seeks recover}' is:
1. His unlawful employment by reason of his immature years;
2. The neglect of defendant properly to guard the lower sprocket
wheel and chain where his foot was caught; and 3. The failure
by his employer ^^^ to give proper warnings and instructions
of the risks incurred in the service. The assignments of error
question the sufficiency of the evidence, the propriety of several
instructions given at the trial, as well as the refusal to give
others in behalf of defendant.
From an examination of the entire evidence we are satisfied
that it reasonably tends to show that the guards in front of
Am. St. Rep. Vol. 101—27
418 American State Reports, Vol. 101. [Minnesota,
the gearing where plaintiff's foot was caught, which to outward
appearances protected him, would^ permit the slipping of the
operator's foot into the revolving machinery behind the wooden
box covering it ; and whether the defendant was negligent in tliis
respect was for the jury. Neither is it conclusive that the plain-
tiff was required to have made a more thorough examination of
the gearing and guard near which he was required to place his
feet while performing his duties, nor that he assumed the risks
and hazards occasioned thereby; hence that part of the blended
motion asking for judgment was properly denied. We cannot
say, either, that plaintiff should have exercised greater caution,
or failed in ordinary care, in preventing his foot from being
caught. The evidence tended to show that he had received no
warning of danger, and upon all these questions the verdict must
be held conclusive, and allowed to stand, unless there was error
in respect to a material instruction upon the burden of proof,
and the damages are so large, in view of plaintiff's injuries, as
to indicate that it was the result of passion and prejudice.
The serious question for our consideration on tliis review
arises upon an instruction wherein tlie court, in reference to
plaintiff's age, attempted to give effect to two legislative enact-
ments of this state — Laws 1895, p. 386 (c. 171), as amended
by Laws 1897, p. 625 (c. 360). The first section of chapter
171, page 386, Laws of 1895, forbids the employment of children
under fourteen years of age in any factory, workshop, or mine.
Section 2 prohibits any child who can attend school from being
employed at any occupation during school hours. Section 3
provides that the commissioner of labor and assistant factory
inspector shall have a right to demand a certificate of the physi-
cal fitness of infants for labor from some regularly licensed
physician. Section 7, which is specially material here, provides
tliat : "No child actually or apparently under sixteen years of
age shall be employed in any factory, workshop or mercantile
establishment ^""^^ or in the service of any public telegraph, tele-
phone, or district messonger company, or other corporation, un-
less the person, firm or corporation employing said child pro-
cures and keeps on file .... a full and complete list of such
children employed therein."
Section 8 provides that in towns or cities having a super-
intendent of schools the certificate provided for in section 7
shall be issued by him, or when there is no superintendent of
schools then by a member of the school board ; and provides
for a statement therein of special qualifications of the child.
Nov. 1903.] Perky v. Tozee. 419
Section 10 provides for a visitation of the factory, -workshop,
etc., by the superintendent of education and the school board.
Section 13 enacts that: "Every owner, superintendent, agent or
overseer of any factory, workshop," etc., "who employs or per-
mits to be employed therein or thereby any child contrary to
the provisions of this act, and any person who employs a child
contrary to the provisions of this act .... shall be guilty of a
misdemeanor, and upon conviction thereof .... shall be fined
not less than twenty dollars nor more than fifty dollars for
each and every offense. A failure to produce to an officer or
employe of the bureau of labor, or to a member or authorized
agent of the board of education or board of trustees of the city
or school district in which the said child is employed, on de-
mand, the certificate and register required by this act, shall be
prima facie evidence of the illegal employment of the child
whose certificate is not produced."
This law was amended by Laws of 1897, page 625 (chapter
360), which provides that: "No child under fourteen years of
age shall be employed at any time in any factory or workshop
or about any mine. No such child shall be employed in any
mercantile establishment nor in the service of any telegraph,
telephone or public messenger company, except during the vaca-
tion of the public schools in the town where such child is em-
ployed. No child under sixteen years of age shall be em-
ployed at any occupation dangerous or injurious to life, limb,
health or morals."
^^^ Section 5 of the previous law is amended so that it reads
as follows : "Whenever it appears upon due examination that
the labor of any minor who would be debarred from employ-
ment under the provisions of sections 2 and 4 of this act [pro-
hibiting the employment of infants, so as to prevent their at-
tendance upon school] is necessary for the support of the fam-
ily to which said minor belongs, or for his own support, the
school board or board of school trustees of the city, village or
town in which said child resides may, in the exercise of their
discretion, issue a permit or excuse authorizing the employment
of such minor within such time or times as they may fix."
The undisputed evidence tended to show that at the time of
plaintiff's employment he was three days past his fourteenth
birthday. No evidence was offered to show that the certificate
provided for in section 12 of the act of 1895. had been pro-
cured, or was in possession of defendant, nor was it disputed
that such employment was illegal in this respect, and sub-
420 American State Reports, Vol. 101, [Minnesota,
jected defendant to the penalties provided for. The instruction
^iven by the trial court which counsel for defendant challenge,
in substance stated that the fact that plaintiff was under six-
teen years of age in connection with his employment in the
sawmill was, in violation of the statute, and the injury from
the machinery which he was tending at the time made a prima
facie case of negligence against defendant, so that, if the plain-
tiff had rested upon this proof, and no evidence had been intro-
duced to contradict it, he would have been entitled to recover.
But it was further stated by the court in qualification that this
prima facie showing might be rebutted by evidence to show
that the machine which caused plaintiff's injury was properly
guarded, or that the plaintiff himself contributed to the acci-
dent.
Leaving out of consideration the probable effect of these in-
structions, it may be said that the evidence to show that plain-
tiff exercised the care for his own protection required by one
of his years was sufficient to sustain the verdict, and, had the
court omitted to instruct that the burden was upon the defend-
ant to establish these facts in defense, we should not have
doubted that it was our duty to approve the findings of the
jury; but the question is clearly presented by this instruction
^^" whether the violation of the statute^, followed by injury
from causes necessarily incident to the employment and business
of defendant, shifted the burden otherwise imj)Osed upon plain-
tiff, but upon mature reflection we tliink our doubts in this
respect must be resolved in favor of the plaintiff.
Counsel for defendant insist that the statutes from which
we have quoted at length, so far as the same related to children
of the age of plaintiff, were intended to secure for their b( nefit
educational benefits only; therefore could not be regartled as
a proximate cause of an accident occurring through the neglect
of tlie master to furnish reasonably safe instrumentalities for
their work upon dangerous instrumentalities, or in properly
protecting the same, or the failure to give necessary instructions
to an injured lad of the specific risks he incurred. We cannot
adopt the view that the sole object of these statutes u-as to
secure educational advantages to children. Xeither the history
of the subj<>ct nor the terms of the enactments themselves will
justify such a conclusion.
Al)Out the middle of the last century, when England had
achieved marked succrss in the development of its mines, which
furnished the means to operate its workshops by steam power,
Nov. 1903.] Perry v. Tozer. 421
and thereby attained its commercial supremacy in the world
markets, cheap child labor was largely utilized, to the detriment
of the morals, health, and personal safety of very many young
children, which aroused the humane and charitable impulses of
the reformers and philanthropists of that country, who con-
ducted an earnest and effective propaganda to mitigate the evils
that deprived the objects of their solicitude of the benefits of
education and moral instruction, subjecting them to the evils
of a servile peonage, to minister to the selfishness of the em-
ployer. In 1878 this agitation resulted in a parliamentary
codification of several former enactments embracing a complete
system to enlarge the scope of existing laws, wherein not only
the direct interests of the children themselves were considered
as an important factor in the scheme, but also the prevention
of ignorance, suffering, and crime, with their results to the
public welfare. A reference to the history of the "factory acts"^
of England, which may be found in any modern encyclopedia,
clearly indicates that these laws were adopted not only to
diminish ignorance and immorality, but also to prevent the
maiming and injuring '*^'' of young children in hazardous oc-
cupations, whereby they would become burdens upon the public.
Our own statutes from which we have quoted above are not
as complete nor as systematically arranged as the perfected
English scheme, yet it seems quite apparent that the protection
of life and limb among the uneducated infants of the state was
intended as well as in the English prototype. While a distinc-
tion is made in our law between children under fourteen years
and those between fourteen and sixteen years, the difference
is one of degree, not in the obligations imposed. This is but
a fair inference from our previous views of the capacity of in-
fants to protect themselves from the dangers contemplated, for
Ave do not have to look beyond the decisions of this court to
find evidence that the intelligence of the youth who are en-
gaged in hazardous employments is a material fact for the
consideration of the jury to determine whether tliey assume the
risks incurred or contribute to unfortunate results arisin<T there-
from: Twist V. AYinona etc. R. R. Co., 39 Minn. 16-1, 12 Am.
St. Rep. 02 n, 39 X. \\. 402 ; Hop f el v. St. Paul etc. Pv. Co.,
49 Minn. 203. 51 X. W. 1049.
Counsel's claim, broadly stated, is that it was the operation
of the machinery, and, at most, the improper protection of the
same, that was the proximate cause of the injury, and not the
violation of the statute. This claim finds sup])ort in some
422 American State Reports, Vol. 101. [Minnesota,
decisions, notably that of Goodwillie v. London etc. Co., 108
Wis. 207, 84 N. W. 161. But authorities of the highest re-
spectability hold that the violation of a statute prohibiting the
employment of a child in a hazardous occupation, where such
employment is prohibited by law, establishes a right to recover
for negligence; hence, in such cases liability is to be presumed
from the employment in disobedience of law: Marino v. Leh-
maier, 173 N. Y. 530, 6G N. E. 572; Breckenridge v. Reagan,
22 Ohio C. C. 71; Morris v. Stanfield, 81 111. App. 264; Queen
V. Dayton Coal Co., 95 Tenn. 458, 49 Am. St. Rep. 935, 33
S. W. 460, 30 L. R. A. 82. Unless we can say that the statute
has no effect in a suit for damages where the law had been
violated, we are required to hold that the employment which
the legislature positively forbids furnishes evidence tending to
show at least presumptively that one of the causes of the injury
in this case was the violation of the statute, in analogy to tlie
well-known doctrine that ordinances regulating the hitching of
horses, the speed of trains in cities, or other subjects of mu-
nicipal control are '*^^ held to be evidence to sustain the charge
of negligence: Weyl v. Chicago etc. Ry. Co., 40 Minn. 350, 42
:N". W. 24; Dugan v. St. Paul etc. Ry. Co., 43 Minn. 414, 45
y. W. 851.
It is well settled that a wrongdoer is at least responsible for
the results likely to occur, or resulting as a natural consequence
from his misconduct, or such as might have been reasonably
anticipated: Ransiel v. j\Iinneapolis etc. Ry. Co., 32 Minn. 331,
20 N. W. 332. In cases of tort the ap])lication of tbe rule as
to proximate cause is that, where several concurring acts, one
of them a wrongful omission of defendant, produce an injury,
and it would not have been produced but for such wrongful act
or omission, such act or omission is tlie proximate cause of an
injurv which miglit have been anticipated as a natural conso-
quoncc thereof: Campbell v. City of Stillwater, 32 ]\Iiini. 3U8,
50 Am. Rep. 567, 20 X. W. 320. And the doing of an act pro-
hibited by municipal regulation may be regarded as the proxi-
mate cause of an injury wliich direetly resulted from oilier
sourc(s: Salis!)ury v. Ilerchenroder, lOG ilass. 458, 8 Am. Rep.
354.
It is. however, of doubtful utility to refine upon the rule ex-
pressed by the maxim. '"'Causa proxima noii remota speetatur.''
for plaintiff's right of action rests upon tlie l)road ground tluit,
where a statute requires an act to he done or abstained from
by one person for the benefit of another, then an action lies in
Nov. 1903.] Perky v. Tozee. 423
the latter's favor against the former for neglect in such act or
abstinence, even though the statute gives no special remedy.
Even the imposition of a penalty by the statute does not oust
the remedy by indictment, nor, a fortiori, by suit, for negli-
gence, unless the penalty be given to the party injured in satis-
faction for injury: Wharton on Negligence, sec. 443. This
principle has been recognized and applied in this state, and it
is now well settled that, where a statute or municipal ordinance
imposes upon any person a specific duty for the protection or
benefit of others, if he neglects to perform that duty he is liable
to those for whose protection or benefit it was imposed for any
injuries of the character which the statute or ordinance was
designed to prevent: Osborne v. McMasters, 40 Minn. 103, 13
Am. St. Eep. 698, 41 N. W. 543.
From the investigation we have made of the reasons for the
statute upon which the instruction of the trial court was based,
we have reached the conclusion that the certificate which the
school authorities ^^^ are to give upon their examination of
an infant was intended to secure educational advantages to the
subjects of legal solicitude, and likewise to vest in the school
officials the power to determine, in the exercise of wise judg-
ment, whether, from the intelligence and capacity of such in-
fant, it would be reasonably safe for him to engage in danger-
ous occupations. The failure to obtain this certificate was a
violation of the statute, and entitled the plaintiff to a remedy
for the negligent acts of defendant. Hence it was proper to
give effect to the conceded disregard of the law, and, where an
injur}' is within the mischief of the statute, it is not easy to
see how less weight could be given to the statute than was ex-
pressed by the instruction of the trial court, which makes the
violation of the law, with consequent injury from the dangerous
machinery in use in defendant's mill, prima facie, but not con-
clusive, evidence of plaintiff's right to recover.
In the remaining assignments there are several criticisms of
the charge of the trial court and the refusal of defendant's
requests. We have considered tlicse carefully, and are of the
opinion that tlie charge as a wlio^e properly defined the relation
of master and servant, and the relative obligations in the exer-
cise of the duty and care owing to each by tlie other. Where,
in some instances, the court's instructions are not accurate ex-
pressions of the law, a reference to other portions of the cliargo
shows that the jury could not have been misled to defendant's
injury. Of the charge as a whole it may be said that it was
424 American State Rlports^ Vol. 101. [Minnesota.
exceptionally clear and able, and gave the law required for the
protection of defendant's interest as effectually as could be re-
quired.
The wounds inflicted upon plaintiff were severe and ex-
tremely painful. He was confined to the house for a consider-
able portion of time undergoing a surgical operation which has
crippled him for life. In view of his age, the severity of his
injuries, the suffering caused thereby, and his permanent dis-
ability, we do not think that the inference is to be drawn from
the verdict of seven thousand seven hundred and fifty dollars
that it was the result of passion and prejudice by the jury.
Order affirmed.
yt.s to the Effect of an Employer violatinjr statutory provisions in-
tended for the protection of employes, see the monog^raphic note to
Houston etc. Ry. Co. v. De Walt, 97 Am. St. Rep. 891, 892. And as
to the violation of a statutory duty, generally, as constituting negli-
gence, see Harrington v. TjOS Angeles Rv. Co., 140 Cal. 514, 98 Am.
St. Rep. 85, 74 Pac. 15; Chicago etc. R'. R. Co. v. Mochell, 193 111.
208, 86 Am. St. Rep. 318, 61 N. E. 1028.
CASES
IN THE
SUPREME GOUET
OV
MISSOURI.
PAEKS V. ST. LOUIS AXD SUBURB AX EAILWAY
COMPAXY.
[178 Mo. 108, 77 S. W. 70.]
STBEET RAILROADS — Negligence — Passenger in Dangerous
Position. — Tf a street railway company conscntg to a passenger's tak-
ing a dangerous position on its car and knowingly assumes to carry
him in that position, it must exercise that high degree of care which
the law requires a carrier to observe for the safety of his passen-
gers. The degree of care to be observed by the railway company in
such case must be in proportion to the danger wliich the passenger's
perilous position entails, (p. 428.)
STREET RATLROADS — Contributory Negligence— Passenger
in Dangerous Position. — If a passenger takes a dangerous position on
a street-car, even with the consent of the company, he must observe
for his own safety the care, proportioned to the apparent danger,
that a man of ordinary prudence would observe under like circum-
stances, and, if he fails in this, and is injured from a cause arising
out of, or incident to the position itself, without negligence on the
part of the railroad company, it is not liable. Though the company
is negligent, still if the passenger fails in such observance of ordin-
ary care, he is guilty of contributory negligence and cannot recover,
(p. 429.)
STREET RAIIiROADS — Passenger in Dangerous Position^
Refusal to Carry. — A street railroad company has a right to refuse
to carry a passenger who takes an unusual and dangerous position on
its car. (p. 429.)
STREET RAILROADS — Contributory Negligence— Dangerous
Position of Passenger. — If a passenger, in boarding a fitreet-car,
takes a dangerous position thereon with the knowletige and consent
of the railroad company, and thereafter is not guilty of negligence,
but is injured through the negligence of the company arising out of
a condition which thereafter becomes extrahazardous, he cannot be
defeated of his right to recover, on the ground that he was guilty
of contributory negligence, (p. 430.)
(426j
426 American State Eeports, "Vol. 101. [Missouri,
NEGLIGENCE, CONTRIBUTOEY— Right to Recover.— A
plaintiff may recover notwithstanding his contributory negligence,
when the defendant is guilty of negligence in seeing the plaintiff's
peril, and though owing him. a duty and being able with ordinary
care to avoid such peril, yet recklessly and wantonly inflicts injury
upon him. (p. 430.)
NEGLIGENCE. — Passengers Never Assume the risk of the car-
rier's negligence, (p. 432.)
NEGLIGENCE. — Passengers Assume the Ordinary Risks inci-
dent to the act of traveling, but not an added danger caused by the
negligence of the carrier, (p. 432.)
TRIALS. — Instructions may assume as established facts about
which there is no dispute, (p. 432.)
McKeighan & Watts and E. A. Holland, Jr., for the appel-
lants.
W. It. Gentry, for the respondent.
iia VALLIANT, J. Defendants, two street railway com-
panies, appeal from a judgment for five thousand dollars re-
covered against them in the circuit court of St. Louis county
by the plaintiff on account of personal injuries alleged to have
been received by him through their negligence.
There is not much dispute as to the governing facts of the
case. In June, 1900, there was a strike among the employes
of all the otlier street railroad companies in the city of St.
Louis, and the only street-cars running were those operated by
the defendant companies. The consequence was, the cars of
these two companies were crowded with par-sengers beyond their
normal carrying capacity. People crowded in, filling the bodies
of the cars, the platforms and every part where a seat or foot-
hold could be obtained. Plaintiff, on June 14, 1900, boarded
a west-1 ound car of the St. Louis and Suburban Pailway Com-
])any (which we will call the Suburban car) at the crossing
of Foui'toi'nth street and Franklin ^^^ avenue. The car was
CIO. '.(led with passengers to such an extent that the only space
plaintiff could obtain on it was standing room on the step of
the front ]ilatfomi outside of the gate that inclosed the ])lat-
forin. There was anoth<'r man and a boy standing on the step
in the same altitude plaintiff took. During the period of this
strike, it was not unusual for men to ride on the steps of tlic
platform outsido the gates as iiiose men were doing. At the
point wliere plaintiff ))oarded the car the defendant's railway
runs nortli and south, Ijut a sliort distance after passing Frank-
lin avenue it turns west, which is its main course. It is a
double-track road, and the ears of both defendant companies
Nov. 1903.] Parks v. St. Louis etc. Ey. Co. 427
run over it. The step on which the plaintilf took his position
was on the west side of the car going north, which would be-
come the south side after it turned west, and was the inside, that
is, the side next to the other track over which the east-bound
cars came. The outside line of the step on which the plaintiff
stood was on a line with the outside of the car, but the plain-
tiff's body projected beyond that line — he could not press him-
self closer in. The motorman saw the men and the boy on the
sitep and told them it was dangerous to ride there, and that
they ought to try to get on the other side, but they did not
change their position. The conductor also saw the plaintitT
there, and asked him for his fare while he was in that position,
and received it. The plaintiff rode standing on the step out-
side the gate, from Fourteenth street to a point just beyond
Vandeventer avenue, a distance of probably two miles or more,
where the accident occurred. In going that distance the car
passed around two or three curves and met several cars, east
bound on the other track. Just west of Vandeventer avenue
the tracks of the defendant companies curve to the north and
then turn again to the west. Cars going in opposite directions
meeling in this curve were brought more or less nearly in con-
tact according to the **■* point in the curve at which they passed
each other. The space between cars thus passing was variously
estimated by different witnesses, but the testing ony of all of
them showed that at some point in the curve the meeting cars
would come so close to each other that extra care was to be ob-
Ferved to avoid contact", and it was made the subject of s])ocial
regulation. The printel rules of the companies gave the east-
bound cars the riglit of way in the forenoon and the west-bound
in the afternoon. Plaintiff was on a west-bound car and it was
about 5 or 6 o'clock in the afternoon, so that tliis car had the
right of way. The rules also required the car tliat did not
have the right of way to come to a stop forty feet before enter-
ing the curve, to allow a car coming in the opp(7site direction
to pass through tlie curve witlicut danger of contact. On this
occasion as the Suburban car going west approaclied this cur\-e,
a car of the St. Louis and .Meramec Piver Pailroad Company
(which we will call the Mcramec car) approached it from the
opi)osite direction. Each of these cars was in plain view of
the motorman in charge of the other. Th.cro is some conflict
in the evidence as to whether the east-b'umd car stopped at all
before the accident, but if it stopped at all it did so very close
428 American State Reports, Vol. 101. [Missouri,
to or just at the entrance of the curve. There is also some
confl ct as to the speed at which the Suburban car entered the
curve and was going when the accident occurred. But what-
ever the truth about those disputed points may be, the fact is
that the position of the Meramec car in reference to the curve
was such and the movement of the Suburban car into and around
the curve was such as that the plaintiff's body was brought into
violent contact with the Meramec car and he was rolled be-
tween the two cars until the space between them became w'ider
and he was dropped to the ground, having received serious in-
juries.
1. Appellant's first proposition is that the court erred in re-
fusing tl^.e instruction in the nature of a demurrer to the evi-
dence which defendants asked. The *^° substance of the
proposition is that the position taken by the plaintiff, on the
step of the platform, was so obviously dangerous, and that it
tO obviously contributed to the accident, that the court should
have adjudged the plaintiff on his own evidence guilty of con-
tributory negligence.
There are two standpoints from which this proposition is to
be considered.
a. That the plaintiff's position was one of danger and that
he would not have been injured if he had not been where he
was, are facts indisputable. But was he guilty of negligence
in being there? We need not dwell on the fact that the car
was so crowded that he could not get on it in any other posi-
tion, because he was not compelled to get on it at all. lii^
taking passage on the car was a voluntary act. Traveling o.i
a street-car in a great city is always attended with danger, what-
soever position in or on the car the passenger may assume. But
if it is a position that the carrier offers to the passenger, or a
position which the carrier assents to his taking, and knowingly
assumes to carry him in that position, then it becomes the duty
of the carrier to carry him safely in that position if it can bo
done by tlie exercise of that high degree of care which the law
requires the carrier to observe for the safety of its passengers.
The degree of care to be observed by the carrier in such case
must be in proportion to the danger which the passenger's posi-
tion entails — the more dangerous the ])osition, the greater the
care tlie carripr is 1 ound to observe. And at the same time
the law imposed on the passenger in like case the dutv of ob-
serving for his own safety the care that a man of ordinary pru-
dence under like circun;stances would observe, and that care.
Nov. 1903.] Parks v. St. Louis etc. Ky. Co. 429
too, must be in proportion to the apparent clanger — the more
dangerous the position the more care a prudent man would be
expected to observe. It is the duty of a carrier who has under-
taken to carry a passenger in such a position to carry him
safely if it can ^*** be done by the exercise of the degree of
care above mentioned, and it is correspondingly the duty of tho
passenger after he has taken that po^^ition to observe such care
for his own protection as an ordinarily prudent man in a like
position and under like conditions would naturally be expected
to observe. Under these circumstances if the passenger is in-
jured from a cause arising out of or incident to the position it-
self, without failure of duty on the carrier's part, the carrier is
not liable. And though in such case the carrier fail to per-
form its duty and that failure Results in the accident, still if
the passenger fails also in his duty as above defined and his
failure contributes to bring about the result, he cannot recover.
But in judging the conduct of both carrier and passenger we
must look only to conduct after the passenger has assumed the
position, not charging the position itself to either as an act
of negligence, but requiring both to keep in mind the peril in-
cident to the position and regulate their conduct in reference
thereto.
In this case the carrier knew the position the passenger had
taken and assented thereto, and undertook to carry him in that
position. \Ve say this because the motorman saw him there
and warned him that it was a position of danger and the con-
ductor saw him there, and without warning and without re-
monstrance £sl;ed him for his fare and received it. If that
had been a position of such danger that the carrier was un-
willing to assume the duty of carrying the plaintiff therein ihi
carrier had the right to require the plaintiif to leave the car.
It was an unusual position, one involving more tlian usual risk,
and the carrier had the right to refuse to carry him in that
position. But unless some other circumstance or condition
arose to incroavSe the hazard, it was feasible to carry a passen-
ger safely in that position. This is shown by the fact that,
during this period of overcrowded cars, the defendants did
carry men safely in that position, and especially by the fact
^^"^ that this plaintiff was carried safely from Fourteenth
street to Yandeventer avenue, passing in route many cars on
the other track, and passing through two or three other cun'es.
There is no act of the plaintiff, after taking his position on
the step, that is complained of as negligence. The foregoing
430 American State Reports, Vol. 101. [Missouri,
views accord with former decisions of this court: Huelsenkamp
V. Citizens' R. R. Co., 37 Mo. 537, 90 Am. Dec. 399 ; Willmott
V. Corrigan etc. Ry. Co., 106 Mo. 535, 17 S. W. 490; Seymour
V. Citizens' Ry. Co., 114 Mo. 2G6, 21 S. W. 739.
b. But assuming that taking the position on the step of the
platform was itself an act of negligence, and that it contrib-
uted to the occurring of the accident, still there was a question
for the jury. The motorman and conductor both knew that
the man was there and knew the peril of his position; they also
knew that he could not jump from the car while it was passing
through the curve without the risk of falling and being run
over by the approaching east-bound car, or of being run over if
he did not fall. Yet in plain view of the other car, and seeing
that it had not stopped as the rules of the company required,
and as common sense dictated, the motorman of the Suburban
car ran his car into the curve and on until he had crushed the
plaintiff's body against the Meramec car. The facts of this
case make a strong example of the wisdom of the rule which
allows a plaintiff, in exceptional cases, to recover notwithstand-
ing his own contributory negligence, when the defendant sees
the plaintiff's peril and although able by ordinary care to avoid
it, yet recklessly or wantonly inflicts the injury: Kellny v. Mis-
souri Pac. Ry. Co., 101 Mo. 67, 13 S. W. 806, 8 L. R.^ A. 783;
Morgan v. Wabash Ry. Co., 159 Mo. 262, 60 S. W. 195.
The court did not err in refusing an instruction looking
to a nonsuit.
2. The plaintiff's petition stated his cause of action based
on alleged negligence of the defendants in bringing their cars
into collision or such close proximity as to cause the plaintiff's
injuries. The *** answer of the defendants consisted of a gen-
eral denial, a plea of contributory negligence based on the act
of the plaintiff in taking the dangerous position on the step
of the platform, and tlien followed what in their brief the
learned counsel for appellant call a plea of assumption of risk,
which is as follows: "And for a further defense defendants state
that all the details of defendants' tracks and the manner of
operating cars thereon were known to plaintiff, or by the exer-
cise of ordinary care might have been known to plaintiff, and
that the danger of riding iipon the southern steps of the front
platform of the west-bound car was known to plaintiff, or by
the exercise of ordinary care might have been known to plain-
tiff, and that plaintiff assumed the risk of riding upon said
part of said car on said occasion."
Nov. 1903.] Parks v. St. Louis etc. Ry. Co. 431
Appellants now complain that the instruction given at the
request of the plaintiff ignored the defense set up in that plea.
, That is not a good plea. The fact that the plaintiff had neg-
ligently taken a position on the platform step outside the gate
was a fact already properly pleaded as an act of contributory
negligence. To the plea of contributory negligence the plain-
tiff replied and the issue was properly joined. But the part
of the answer above quoted, and which appellants call their plea
of assumption of risk, presents no affirmative defense. If it
is intended by that plea to say that the plaintiff's injuries were
the result solely of his voluntary act of riding on the step of
the platform, then it means that the injuries were not the re-
sult of the defendant's negligence, which defense was already
covered by the plea of general denial. The petition having
charged that the plaintiff's injuries were caused by the de-
fendant's negligence, and the defendants having denied that
charge, they were at liberty, under their general denial, to
prove anything to show that the plaintiff's injuries did not
result from their negligence. **^ That which can be proved
under the general denial already pleaded, is improper to be
specially pleaded.
If the pleader intended to say that to ride in that position
was so dangerous that injury to the plaintiff could not have
been avoided by the exercise of the care incumbent on the car-
rier, and that the fact that it was so dangerous was obvious or
known to the plaintiff, then the fault of the plea is that it does
not say that, and, in the light of the evidence, if it had said
so the court would not have committed error in ignoring it in
the instructions, because there was no evidence to support it.
All the evidence shows that the accident would not have oc-
curred if the motorman had used even ordinary care.
If by that plea it was intended to say that the plaintiff's neg-
ligent act of riding on the step joined with the defendant's neg-
ligent act of attempting to pass two cars in a space that was
not wide enough for them to pass in safety, and that thus the
plaintiff contributed to cause his own injury, that defense was
already covered by the plea of contributory negligence. .
But if it was intended by the plea to say that the plaintiff
by voluntarily taking that position released the defendants from
their duty to exercise the degree of care due from the carrier to
the passenger, or if it was intended to say that by taking that
position the plaintiff assumed not only tlie risk incident to it
but assumed also the risk of the defendant's negligence, then
432 American State Keports, Vol. 101. [Missouri,
it was not a good plea. The passenger never assumes the risk
of the carrier's negligence.
There is always a risk of personal injury to a person trav-
eling, even if there be no negligence either on his own part, or
on the part of the carrier. That risk is incident to the act of
traveling, and is greater or less according to the circumstances
and conditions. That risk the passenger assumes. But if to
the danger incident to the act of traveling under the circum-
stances and ^^® conditions of the particular case, is added a
danger caused by the negligence of the carrier, the passenger
does not assume the risk of those combined dangers. If the
catastrophe in question did not result alone from the danger
incident to the act of traveling, under the given circumstances
and conditions, but resulted because to that danger was added
the consequence of the negligent act of the carrier, there was
no such assumption of the risk as would relieve the carrier from
liability.
Assumption of risk is one thing and contributory negligence
is anotlier: Curtis v. McNair, 173 Mo. 270, 73 S. W. 167. The
court did not err in ignoring that plea in its instructions.
Instruction numbered 3 given for the plaintiff begins as fol-
lows: "The jury are instructed that if you believe and find from
the evidence in this case that the servants of defendant St.
Louis and ^leramec River Railroad Compan}', wlio were in
charge of its said east-bound car on the occasion mentioned in
the evidence, prior to and at the time of the alleged injury to
plaintiff, were not exercising ordinary care to avoid said col-
lision," etc.
Appellants complain of this instruction because they say that
by the use of the words "said collision," it assumes that there
was a collision, instead of submitting the question to the jury.
There was no dispute on that point. The evidence of defend-
ants showed that there was a collision, as well as that of the
plaintiff. Although the general denial put every fact stated in
the petition in issue, yet a fact about wliich there was no real
dispute, and that was conceded at the trial, may be assumed in
an instruction. The defendants asked five instructions, marked
B, C, D, E and F, the effect of which were that the plaintiff
by taking the position of obvious danger on the step of the plat-
form was not entitled to recover. From what we have above
said it ^^^ will appear that there was no error in refusing those
instructions.
Nov. 1903,] Parks v. St. Louis etc. Ry. Co. 433
Instruction G asked by defendant was to the effect that if
the Meramec car at the*nioment of the accident was not pass-
ing through the curve, the verdict should be in favor of the
Meramec company. That instruction called for a verdict for
that defendant even though the Meramec car had stopped after
it had entered the curve, as some of the evidence tended to show,
at a point where the danger was greatest. It was not error
to refuse that instruction.
3. It is earnestly argued that the damages awarded by the
jury are excessive.
We do not deem it necessary in this opinion to discuss the
evidence bearing on this point. It is sufficient to say that the
assessment by the jury is not so much out of the way as to jus-
tify us in invading their peculiar province. There is nothing
to indicate that it is not the result of calm judgment, and we
will not disturb it.
We find no error in the record and therefore the judgment
is affirmed.
All concur.
The Duty and lAaUUty of Street Railwny companies to passengers
taking dangerous positions on their cars are discussed in Watson v.
Portland etc. Ry. Co., 91 Me. 584, 64 Am. St. Eep. 268, 40 Atl. 699,
44 L. R. A. 157; Whalen v. Consolidated Traction Co., 61 N. J L.
606, 68 Am. St. Rep. 723, 40 Atl. 645, 41 L. R. A. 836; Woodroffe v.
Roxborough etc. Ry. Co., 201 Pa. St. 521, 88 Am. St. Rep. 827, 51
Atl. 324; Thane v. Seranton Traction Co., 191 Pa. St. 249, 71 Am.' St.
Rep. 767, 43 Atl. 136; Reber v. Pittsburg etc. Traction Co., 179 Pa.
St. 339, 36 Atl. 245, 57 Am. St. Rep. 599, and cases cited in the cross-
reference note hereto. In a recent Micliigan case it is held contrib-
utory negligence, as a matter of law, for a passenger on a freight
train to take a loose chair near an open door in the caboose, instead
of a fixed seat provided for passengers, when he knows that the
train is being made up: Freeman v. Pere Marquette R. R. Co. 131
Mich. 544, 100 Am. St. Rep. 021, 91 N. W. 1021. '
Am. St. Rep. Vol. 101—28
434 American State Eeports, Vol. 101. [Missouri,
JONES V. KANSAS CITY, FORT SCOTT AND MEMPHIS
RAILROAD COMPANY.
[178 Mo. 528, 77 S. W. 890.]
PLEADING — Waiver of Defects. — A defect appearing on the
face of the complaint can be reached only by demurrer, unless it
affects the validity of the cause of action, rendering the complaint
insufficient to support the cause of action, and then it can be neither
waived nor cured, and can be brought up on motion to arrest judg-
ment, or during the trial. All other defects in the complaint can he
"waived and are deemed to have been waived unless brought to the
attention of the court by demurrer, and unless, if the demurrer is
overruled, the defendant declines to plead to the merits, (pp. 438,
439.)
APPELLATE PEACTICE — Review of Demurrer. — The com-
plaint, the demurrer, and the judgment of the court on the demurrer,
constitute a part of the record proper, and such judgment is review-
able witliout exception, but a motion for a new trial relates to matters
only that are preserved by the bill of exceptions, (p. 439.)
ACTIONS — Unnecessary Party. — An unnecessary party to an
action may be dropped at any time without affecting the rights of
necessary parties and tlie presence of the unnecessary party in the
case is not ground for a reversal of the judgment, (p. 440.)
ACTIONS — Unnecessary Parties. — If a statute declares that a
trustee of an express trust may sue in his own name without joining
the person for whose benefit the suit is prosecuted, the joining of
such beneficiary, if not forbidden by statute, is unnecessary, but
not fatal to the action, (p. 442.)
ACTIONS — Unnecessary Parties — Construction of Statute. —
Tf a statute creates a lial)ility against a railroad company for dam-
ages due to any of its employes arising out of the negligence of its
agents, and declares that the amount recovered slialT inure to the
exclusive benefit of the widow and children of the deceased employ^,
and if he is not a resident of the state, that suit may be maintained
by tile widow, such statute makes the widow the trustee of an ex-
press trust, and suit may be maintained by her alono for the benefit
of herself and her chil(lren, the joining of such children as parties
plaintiff, though unnecessary^ is not a fatal defect to the maintenance
of the action, (p. 442.)
ACTIONS —Parties— Suit for Infant. — Tf suit is prosecutod for
an infatit. it must run in tlie name of the infant, as plaintiff, bv its
guardian or next friend, and not in the name of tlie guardian or next
friend for the infant. The infant is tlie real jilaintiff. (p. 442.)
MASTER AND SERVANT— Assumption of Risks— Negli-
gence.— An ciniiloye operating a locomotive on Ji railroad assumes tlie
ordinary risks incident to that business, and if injured through an
■•(■(■idont incident to such business, wfthout fault of the cnnipanv,
cannot reco\-er. (p. 412.)
MASTER AND SERVANT— Negligence— Evidence. Proof of
the mere fact that a servant was injnr'cd in the master's service is
not sufficient to iiiake out a prima faci,. ease for his recoverv (p
442.)
RAILROADS— Negligence-Assumption of Risks ^Burden of
Proof. — Danger of a collision by a regular railroad train with cars
running loose, and unattended from a sidetrack to the main track,
Dec. 1903.] Jones v. Kansas City etc. E. E. Co. 435
is not one of the ordinary risks incident to the business of engineer
in charge of the train on the main track, and in such event the
burden of proof is on the railroad company to explain the cause of
Buch collision and resultiug injury to the engineer, (p. 443.)
RAILROADS — Negligence — Fellow-servants. — An engineer in
charge of a regular railroad train on a main track is not a fellow-
servant with other employes of the company, intrusted with the duty
of preventing loose cars from escaping from the sidetrack to the
main track in an ordinary storm by putting brakes on or blocking
them to prevent their escape, (p. 443.)
BAITiROADS — Negligence — Loose Cars — Burden of Proof. — If
loose and unattended cars run on to a main railroad track imperiling
the life or safety of an engineer in charge of a train on the main
track, and in the due performance of his duty, it must be presumed
that the company did not exercise reasonable care to prevent its
loose cars from escaping, and the burden of proof is on it to explain
the situation, and to show that it performed its duty in endeavoring
to prevent such loose cars from escaping, (pp. 443, 444.)
RAILROADS — Negligence— Maintenance of Derail Switch. —
The fact that a railroad company does not maintain a " derail '^
switch to prevent loose cars on a sidetrack from escaping onto the
main track is not per se negligence. The law imposes upon the
railroad companv only reasonable core in such case, and does not re-
quire it to furnish absolutely safe or even the best known appliances,
(pp. 446, 447.)
RAILROADS — Negligence— Obvious Danger — Assumption ot
Risks.^ — The faf-t that a railroad company does not maintain a "de-
rail" switch on a sidetrack to prevent loo.~e cars thereon from es-
caping onto the main track, is not such an obvious danger as to cod
stitute it negligence for an engineer in charge of a regular train
running on the main track to continue in the service of the company
after knowledge of the absence of such "derail" switch, (p. 447.)
RAILROADS — Negligence — Failure to "Fasten and Secure"
Cars. — An instruction authorizing a recovery for an injuy to a rail-
road employe caused by the escape of loose cars from a sidetrack to
the main track, if the railroad company "negligently failed and
omitted to fasten and secure said cars on said switch or sidetrack,
and that by reason of said negligent failure and omission said cars
escaped from said sidetrack," is not open to the objection that the
words "fasten and secure" imply the duty of making such cars ab-
solutely incapable of getting loose or escaping, (p. 448.)
RAILROADS — ^Negligence Causing Death — Measure of Dam-
ages.— An instruction that the measure of damages against a rail-
road for negligently causing the death of its employe is all of the
wages that he would probaldy have earned during the period of his life
expectancy, is objectionable as authorizing too great a recovery, but is
not ground for reversal when the jury does not return an excessivo
verdict, (p. 451.)
L. F. Parker and Pratt, Dana & Black, for the appellants.
W. Moore and J. A. Peed, for the respondents.
«34 YALLIAXT, J. David P. Jones, who was the hushand
of the plaintiff Mary and the father of the infant Mary, was
a locomotive engineer in the service of °'^^ the defendant and
436 American State Reports, Vol. 101. [Missouri,
was killed in a railroad accident at La Cygne, a station on de-
fondant's road in the state of Kansas, which accident was
caused, as plaintiffs allege, by the negligence of the defendant.
The right of action is based on the following statutes of Kan-
sas: Paragraph 1251 of the General Statutes of Kansas of 1889,
a? follows: ''Every railroad company organized or doing busi-
ness in this state shall be liable for all damages done to anv
employe of such company in consequence of any negligence of
its agents, or by any mismanagement of its engineers or other
employes to any person sustaining such damage."
Also section 422 of chapter 80 of the Laws of 18G8, known
as paragraph 4518, General Statutes of Kansas of 1889, as
follows: "When the death of one is caused by the wrongful act
or omission of another, the personal representatives of the
former may maintain an action therefor against the latter, if
tb.e former might have maintained an action had he lived,
against the latter for an injury for tlie same act or omission.
The action must be commenced witliin two years. Tlie dam-
ages cannot exceed ten thousand dollars, and must inure to
the exclusive benefit of the widow and children, if any, or next
of kin, to be distributed in the same manner as personal prop-
ortv of the deceased."
Also paragraph 4519 of the General Statutes of Kansas of
1889, also designated as section 422a as follows: "Be it en-
acted by tlie legislature of the state of Kansas, tliat in all cases
wbcre the residence of the party whose deatli has been or liere-
after shall be caused as set forth in section 122 of cbnj^tcr
80 of the T^aws of 1808, is or has been at the time of bis death
in anv other state or territory, or when. bcMug a resident of
lliis state, no personal representative is or has hovn aj)pointed,
the action provided in said section 422 may be brnuglit ])y tbo
widow, or where there is no widow, by the next of kin of sueli
deceased."
Tlie plaintiff is "Mary Jones, tbo widow, suing in "'"''• lier own
rigbt, and the same ^lary in tbo capacity of next friend, duly
appointed, suing in behalf of tbe otlier ^Mary, an infant live
years old, tbe only child of tbe deceased.
Tbe negligence charged in the petition is tbat tbe defendant
placed on its sidetrack at La Cvgne three freight-cars and
negligently failed to perform its duty in that connection in
the following particular, viz., to fasten and secure tbe cars
on the sidetrack; to keep tbe Itrakes ])ro|)erlv set and tbe cars
jiroperly blocked; to provide the cars with suflicient brakes in
Dec. 1903.] Jones v. Kansas City etc, E. K. Co. 437
good order to hold them in place; to provide the ends of the
sidetrack with safety or derail switches or other devices of the
kind usually provided by railroads at such places and in com-
mon use at such places to protect the main track from loose
cars and to prevent cars when not under control from passing
from the side track to the main track. The petition states that
in consequence of this failure of duty on the part of the de-
fendant, the three freight-cars mentioned were suffered to es-
cape from the sidetrack and run loosely and unattended to
and upon the main track, where they came into collision with
the locomotive engine which the plaintiff's husband w^as opera-
ting, drawing a freight train, and in consequence thereof he
received injuries of which on the next day he died.
The answer of the defendant was: 1. A plea that the infant
^fary was not a proper or necessary party to the suit; 2. A
general denial; and 3. A plea of contributory negligence, to
which was a reply of general denial.
Upon the trial the plaintiff made the formal proof of her
appointment as next friend of the infant and that she was the
widow, and the infant the only child of the deceased. Con-
cerning the accident the testimony for the plaintiff tended to
show as follows :
At La Cygne the defendant's road runs north and south.
On a sidetrack at that station, on the evening ^^"^ of June
25, 1897, there were several freight-cars stationed. Of these
the one farthest south was a coal-car loaded with ties, next
north after a space of two hundred or throe hundred feet was
a stock-car, and attached to it on the north end was a box-
car. Froja the north end of the switch to a point beyond where
tlie box-car and stock-car stood it was slightly upgrade. From
the stock-car to the coal-car it was nearly level; beyond tlie
coal-car to the main track it was slightly downgrade, and tlie
main track was downgrade from the end of the switch to the
place of the accident. Between 8 and 9 o'clock on the even-
ing of the day named, a storm of wind, rain and hail came
from the northwest, which drove the three cars down the side-
track, out on the main track, and down it for a distance of a
ndle, at which point a locomotive drawing a freight train go-
ing north came forcibly in collision with the coal-car and caused
a wreck of the engine. The plaintiff's husband who was the
engineer in charge of the locomotive received severe injuries,
of which he died the next dav. It was a dark night; the en-
gine was running at the usual rate facing the wind and rain.
438 American State Eeports, Vol. 101. [Missouri,
The train was running on its schedule time, and had the right
of way; the deceased was in the discharge of his regular duty.
It was a severe hut not an unprecedented storm; the damage
done by it in and around the station was not serious. No houses
or trees were blown down. Storms as severe were not so un-
usual in that vicinity as to be beyond expectation. This
switch track was not equipped with what in the testimony was
called a "derail switch," although a considerable number of
sidetracks of defendant along that part of its road between
Fort Scott and Kansas City did have that equipment. A "de-
rail switch" is a device which when set will cause a car running
loose on the sidetrack to run off its rails to the ground before
reaching the main track, and it is contrived to prevent acci-
dents of this kind. The testimony for plaintiff also tended
to show that the brakes were not set on the ^'^^ three cars that
escaped and that they were not blocked or otherwise fastened.
These three were the only cars of those on that sidetrack that
night that were driven out by the storm.
The testimony for the defendant tended to prove that the
three cars in question were supplied with good and sufficient
brakes; that the brakes were set, and that as set, tlioy afforded
all the security required for holding the cars in place under
ordinary conditions or conditions that might reasonal)ly be an-
ticipated. That the storm was of such unusual force that it
could not have been reasonably anticipated. That the device
called the derail switch was not usually used in sidetracks level
or nearly so, as this was, but only where the grades were steep.
That a derail switch was not only not necessary but not desir-
able in a sidetrack like this; that such a switch had its own
difficulties and drawbacks, which rendered its usefulness in the
long run questionable.
The case was given to the jury under instructions which
will be hereinafter discussed. The trial resulted in a verdict
and judgment for the plaintiff for five thousand dollars. The
defendant appeals.
1. It is assigned as error that the minor child of the deceased
was not a pro{)er or necessary party. There was a demurrer
to the petition on that ground, which was overruled, where-
upon the defendant filed an answer in which it set up the
same objection to the petition. The dt^fcct. if it was such, ap-
pearing on the face of the petition, could ])e reached onlv by
demurrer, unless it was such a defect as affected the validity
of the cause of action, rendering the petition insufficient to
Dec. 1903.] Jones v. Kansas City etc. E. E. Co. 439
support a Judgment, in whicli case the defect could be neither
waived nor cured, but could be brought up on motion in ar-
rest or during the trial. But if it was not a defect fatal to the
right of recovery, if it was one that could be waived, it will be
deemed to have been waived unless it was brought to ^^ the
attention of the court by demurrer, and unless, if the demurrer
was overruled, the defendant declined to plead to the merits.
Pleading to the merits after such a demurrer is overruled
waives the right to complain of the ruling. The insertion in
the answer of a clause which was only a repetition of the de-
murrer, did not avoid the effect above stated of answering over.
Nor can that consequence be avoided by inserting in the motion
for a new trial, as was done in this case, that the court erred
in overruling the demurrer. The petition, the demurrer and
the judgment of the court on the demurrer, constitute a part
of the record proper, and that judgment is reviewable without
exception, whereas the motion for a new trial relates to mat-
ters only that are preserved by the bill of exceptions. Unless,
therefore, the alleged defect of parties in this case is of such
a nature as to defeat the right of action, the point is not prop-
erly before us for review.
Tlie defect as stated in the demurrer and in the answer is,
that the infant Mary Jones "is not a proper or necessary party."
If she is merely an unnecessary party, she may be dropped at
any time (Patterson's Missouri Code Pleading, 956, 1001;
Powell V. Banks, 146 Mo. 620, 48 S. W. 664), without af-
fecting the rights of the other plaintiff who is a necessary
party. There is no obscurity in the meaning of the term "not
a necessary party"; it means that the suit can proceed just as
well without her, and in that event, if her presence has the
effect to hinder or burden the case, she may be dropped. But
the meaning of the term "proper party" is not so clear. The
word "or" which the pleader has here used, may be used in two
forms. In one it corresponds to either, and in that sense tlie
term "proper or necessary" would mean "either proper or
necessary" — that is, one or the other. In tlie other form it
means to express the same thing alternately in different words ;
in that sense the term "not proper or necessary" would im-
ply that it was not proper — that is, not necessary. The lat-
ter is ^*^ probably the sense in which the pleader used the
term; if it is not used in that sense then there is nothiiio- to
show what was meant by saying that the infant was not a
proper party. If she was merely an unnecessary party, her
440 American State Reports, Vol. 101. [Missouri,
presence in the case is not such a defect as would justify a
reversal of the judgment.
Appellant takes the position that the infant cannot main-
tain the suit because the Kansas statute does not confer on
her the right of action, and that the widow alone cannot main-
tain it because she is not alone entitled to the proceeds. To
sustain this position, appellant relies on McGinnis v. Missouri
Car etc. Co., 174 Mo. 225, 97 Am. St. Eep. 553, 73 S. W. 586.
In that case it was held by this court that the liability created
by a statute of Illinois, similar in character to that created
by the Kansas statute with which we are now concerned, could
not be enforced in this state at the suit of one who was not
authorized by the statute of Illinois to maintain the suit. The
Illinois statute conferred the right of action on the personal
representative — that is, the executor of the will or adminis-
trator of the estate of the deceased — and it was held that
llie liability and the right of action, being created by statute,
only the person to whom the statute gave the right could main-
tain the suit, and if, as in that case, the foreign statute gave
the right to one whose authority extended not beyond the lim-
its of his state, he could not sue here. It was also held in that
case that our statute, section o48 of the Revised Statutes of
1899, which undertook to authorize the appointment of a per-
son in this state, other than the person specified in the foreign
state, to maintain the suit, was invalid.
The Kansas statute, however, on which this suit is liasod,
differs in the feature we are now considering from the stat-
ute of Illinois. The Kansas statute declares the liability, gives
the right of action to the personal representative of the de-
ceased, specifies that the damages to be recovered sliall inure to
the exclusive '^'^^ benefit of the widow and children, or next
of kin, and then provides that where the deceased is not a
resident of the state, the suit may be maintained by the widow,
or, if there is no widow, then by the next of kin. The right of
the widow, therefore, to maintain this suit is in line with the
law laid down in Mc({innis v. Missouri Car etc. Co., above men-
tioned. The damages to be recovered are to inure, according to
the express terms of the statute, to the exclusive use of the widow
and children or next of kin. Tberefore, wben the administrator
sues and recovers, he does so, not for the use of tlio estate in
general, but for the use of the beneficiaries named ; he is, in
effect, created by the statute a trustee of an express trust for
the use of the widow and next of kin. And if there is no ad-
Dec. 1903.] Jones v. Kansas City etc. E. R. Co. 441
iriinistrator, or if the deceased was not a resident of Kansas,
the widow may sue. But when she sues and recovers it is not for
her owTi use alone, but for the use of herself and the children
or next of kin; she thereby becomes the trustee of an express
trust, so created by the statute which created the liability.
It is argued in behalf of appellant that altliough the widow,
by the law of Kansas, may sue alone, yet by force of our stat-
ute, section 547 of the Revised Statutes of 1899, she cannot
do so because she is not alone entitled to that which may be
recovered. The language of our statute is: "Whenever a cause
of action has accrued under or by virtue of the laws of any
other state or territory, such cause of action may be brought
in any of the courts of this state, by the person or persons en-
titled to the proceeds of such cause of action : Provided such
person or persons shall be authorized to bring such action by
the laws of the state or territory where the cause of action ac-
crued.''
That statute was intended to aid a resident of this state in
availing herself of the provisions of the foreign statute, and
it should be construed as an enabling, not as a disabling stat-
ute. It was intended to confer a right, not to restrict one;
if by the law of Kansas the widow ^•*- had the right, our stat-
ute was not designed to take it from her. This construction
renders that section of our statute in harmony with section
541 of tlie Revised Statutes of 1899, of our practice act, which
provides that a trustee of an express trust may sue in his own
name without joining with him the person for wliose benefit
the suit is prosecuted. But whilst a trustee of an express trust
may sue in his own name without joining the person for whose
benefit the suit is prosecuted, he is not forbidden to join the
beneficiary, and if he does so, the most that can be said in
criticism of the act is that it Avas unnecessary.
In the case at bar, the widow and her child were the sole
bcncrieiarios of the suit, so declared by the Kansas statute, and
by the same statute the widow was authorized to sue and re-
cover for the benefit of herself and her child. She might have
sued alone, as trustee of the express trust, using apt words
to show her authority, and if she has joined the child witli her
in the suit, it was a useless act, but it has impinged no one's
rights.
Strictly construing the petition herein, the child has not been
made a party to the suit. When a suit is prosecuted in the
name of an infant, it must run in the name of the infant as
443 American State Reports, Vol, 101. [Missouri,
plaintiff by its guardian or next friend, and not in the name
of the guardian or next friend for the infant. The infant is
the plaintiff, not the guardian or next friend. An executor or
administrator sues in his own name because the title is in him,
but the title to the infant's property or choses in action is not
in the guardian or next friend, but in the infant. In this case,
if the infant was a necessary party, the petition would be sub-
ject to criticism, because the plaintiffs are named in the peti-
tion as Mary Jones for herself and the same ^Mary as next
friend to the child, the legal effect of which, when taken with
the other averments of the petition, is, t1iat the plaintiff is
Mary Jones as widow, suing for herself, and the same Mary su-
ing as trustee of an express trust for her child. The statute of
^*^ Kansas gives her the right to sue in that capacity and
our statute does not abridge that right.
2. The refusal by the court of the instructions asked in the
nature of a demurrer to the evidence is assigned as error.
As the foundation for their theory on this branch of the
case, the learned counsel for appellant state three propositions,
viz., that the burden is on the plaintiff to prove; 1, Negligence
on the part of the defendant; 2. The specific negligence
charged; and 3, That the negligence was the proximate cause
of the injury; and to these, they add that, in the beginning, the
plaintiff is met bv the presumptions ; 1, That the master has
performed his duty; and 2, That the catastrophe was the re-
sult of the usual and ordinary hazards incident to the busi-
ness, the risk of which the servant assumed wlien lie entered
into the service. The proposition that the biirden is on the
plaintiff to prove his case is conceded, and that tlie presump-
tion is in tlie defendant's favor in the beginning, follows as a
corollary. It is also beyond dispute that there are dangers in-
cident to the business of operating a locomotive on a railroad,
even wlien the business is conducted with due care on the
part of both master and servant; that of such dangers, the
servant assumes the risk, and if he is injured through an ac-
cident that is incident to the business, without fault of the
master, he cannot recover. Proof, therefore, of the mere fact
that the servant was injured in the master's service is not suffi-
cient to make out a prima facie case for the plaintiff. To that
extent, the authorities cited in the brief for appellant sustain
those propositions: Yarnell v. Kansas City etc, Ry, Co., 113
Mo. 570, 21 S. W. 1, 18 L. 11. A. 599; Murphy v. Wabash Ry.,
115 Mo. Ill, 21 S. W. 862, But when cars are found running
Dec. 1903.] Jones v. Kansas City etc. E. R. Co. 443
loose and unattended on the main track at a time and place
when and where they are liable to cause the wreck of a regu-
lar train, it cannot be said that the danger so incurred is one
of the usual and ordinary hazards incident to the business. It
is not a usual ^^^ and ordinary occurrence in a prudently
managed business for cars to be found running loose in that
manner; it does not ordinarily occur unless some one has neg-
lected his duty, and it is not, therefore, a risk assumed by the
servant. And since it is an occurrence not likely to happen
in the orderly course of business, when it does happen and a
servant is injured in consequence, it calls for an explanation.
Upon whom does the burden of making the explanation de-
volve? It devolves either on the injured servant or on the
master. If it was the duty of the injured servant to attend to
those cars, on the sidetrack, to see that they did not escape,
then the burden of making the explanation devolved upon him.
But if he had nothing to do with securing the cars in their
position on the sidetrack, if his duty related only to the opera-
tion of the locomotive engine, then there is no explanation due
(from him.
The question of the negligence of a fellow-servant does not
enter into this case, because, as was sliown by the pleadings
and proof, the statute law of Kansas makes tlae railroad com-
pany liable to a servant for the consequences of the negligence
of a fellow-servant. But, even at conmion law, the negligence
charged in this case was not the negligence of a fellow-servant.
It is the master's duty to furnish the servant reasonably safe
appliances and a reasonably safe field of operation. This duty,
of course, in an extensive business, the master cannot attend
to in person, but must intrust to servants, but the servants to
whom it is intrusted act in the master's place and perform his
duty; and if they are negligent, it is his negligence. It is nec-
essary to observe a distinction between the performance, on the
one hand, of the work for which the business is undertaken, and
the furnishing, on the other, of the appliances and field of
operation with which and in which to do the work; in the one,
the servants are working for a common master; in the other,
the master, either per se or per alium, is performing his duty
to his servant. And whether ^^^ he acts per se or per alium,
if he fails to exercise reasonable care, he is negligent.
It was the duty of the master in this case to use reasonable
care to prevent those cars escaping, and, therefore, when they
444 American State Reports, Vol. 101. [Missouri,
were found running loose, so as to imperil the life of the ser-
vant who was in the due performance of his duty, the presump-
tion is that the master did not use reasonable care to hold his
cars on the sidetrack, and the burden is on him to prove that
he performed his duty in this respect; it devolves on him to
explain the occurrence.
It was not attempted, on the part of the defendant, to prove
that cars with good brakes and the brakes properly set, were
liable to escape under conditions that might reasonably be an-
ticipated. On the contrary, when confronted with the fact
that the sidetrack w^is not equipped with a derail switch, the
defendant offered testimony to prove, and now contends, that
with good brakes and the brakes properly set, the cars were se-
cure under ordinary conditions. But if the brakes were not
set or the cars blocked, they were liable, under ordinary con-
ditions, to do just what these cars did; therefore, wlien it was
shown that they did escape, the presumption arose that there
was something wrong, either with the brakes or their setting.
The defendant, to meet this presumption, undertook to prove
that the cars, although the brakes were set, were driven out by
a storm of such extraordinary force that it was not to have been
reasonably anticipated. If that was the fact, the plaintiff was
not entitled to recover (Stoher v. St. Louis etc. Ky. Co., 105
Mo. 192, 16 S. W. 591 ; ^IcPherson v. St. Louis etc. Hy. (^o.. 97
Mo. 253, 10 S. W. 846; Brash v. St. Louis, 161 Mo. 433, 61
S. W. 808), and the jury were so instructed.
That there was a severe storm on that occasion is shown by
the evidence on both sides, and that these cars were moved out
by the wind is a natural inference. Whether tlie wind was
strong enough to have moved them if the brakes had been set
was an open question. ^**^ That it was an unprecedented
storm, even the evidence of the defendant can hardly be said
to prove ; that it was a storm of such unusual violence as that it
could not have reasonably been anticipated by one whose duty
it was to take measures to guard against storms, is a fairly de-
batable proposition under the evidence. There were no sub-
stantial buildings or large trees blown down. The photographs,
which defendant put in evidence, which were taken shortly af-
ter the storm, show little, if any, effect of the wind. There
was evidence to the effect that storms of as great force, though
not frequent, were to be expected, and that sometimes storms
of greater severity had occurred in that vicinity. There was a
Dec. 1903.] Jones v. Kansas City etc. E. R. Co. 445
reference by one of defendant's witnesses to a cyclone cellar, to
which his thoughts turned when this storm arose, but to which
he did not find it necessary to go, on this occasion. The ref-
erence only goes to show that a cyclone cellar was a contrivance
not unknown to people in that vicinity. Although the storm
was severe, yet if it was such a storm as common experience
taught people in that vicinity to expect, it was the duty of the
defendant to have expected it and to have made reasonable
provision to guard against its effects. The testimony as to the
force of the storm and as to its being the cause of the accident,
was conflicting. So far as the questions relating to the force
and effect of the storm were involved, the case was given to the
jury under the following instruction: "If you believe from
the evidence that the cause of the cars being on the main track
was an unusually violent storm, and that, if there had not been
such a storm they would not have run out, then the defendant
was not in law at fault for their being there, and, without
regard to other questioos in the case, you should find your
verdict for defendant."
That instruction presented that feature of the case to the jury
in at least as favorable light as defendant could liave asked.
After the verdict of the jury, under that in&truction, the de-
fendant has no right to ask an ^^"^ appellate court to say that
the cause of the accident was an unusually violent storm unas-
sisted by any negligence of the defendant.
On the charge in the petition, that the brakes were not set,
the testimony was conflicting. Appellant argues, in reference
to this feature of the case, as though the only evidence in sup-
port of the charge was that by one witness who testified that
as he passed the coal-car which was loaded with tics, he tested
the brake by giving it a kick with his foot, and discovered that
it was loose. This, he said, he did from force of habit, liaving
formerly been in the railroad business and accustomed to a])-
ply that test in his inspection of cars to see if the l)rakes wore
set. We infer from tlie testimony of one of tlie defendant'=i
witnesses that it was not an umisual manner of examining tlie
brakes; he testified that be kicked a brake on one of these cars
in passing, and thereby found it firmly set. l^nt tliat was not
the only nor was it the best evidence that the brakes were not
set. The fact that the cars went out by tlie force of a wind
which the jury found was not sufficient to bave drawn tliom
out if the brakes had been set, tends to show that they were not
set.
446 American State Eeports, Vol. 101. [Missouri,
The defendant's testimony tended to show that this coal-
car was loaded Avith ties about 3 o'clock in the afternoon, and
left on a part of the sidetrack which was nearly level, and
that before leaving it the foreman set the brakes. It was later
in the afternoon or evening, probably 7 or 8 o'clock, when, ac-
cording to the plaintiff's witness, he kicked the brake and found
it loose.
The defendant's testimony in reference to the brake on the
two other cars was not so positive. One witness passed within
a few feet of them and looked at them as he passed, and the
brakes seemed to be set. He did not get on the cars or touch
the brakes. Another witness testified that he came in on a
freight train that afternoon and as they had to leave some cars
on the sidetrack, '^^^ it became necessary to shove these two
cars which were then standing farther north, to the position
in which they were finally left, and they did so. He testified
that the two cars were coupled together; that the brake on the
i^outh end of tlic north car was set; tliat the cars were shoved
by the train witliout first loosening the brake, and that the
brake held the wheels on one end of the car so that they did
not turn. lie left the cars in that condition, so that, accord-
ing to his testimony, there was but one brake set on those two
cars when he left, and there was no evidence that anyone set
the brakes after he left. According to this witness, those tAvo
cars were switched or shoved by the train with that brake set,
and tlicy were left witliout any further setting.
One of defendant's expert witnesses, referring to the loaded
coal-car, said, tliat a jar such as would ])e made by the two
oilier cars coming against it, would be apt to loosen the brake
on tlie coal-ear. It is just as reasonable to infer tliat the jar
fl;o.-c two cars received in switching would loosen the one brake
A\bich was set. Tliat was the sub>tancc of the defendant's tcs-
tinionv as to the setting of the brakes on tlidso two cars, and
it was far from convincing. At best, there was only one brake
sot. and that had been subjected to the shock incident to switch-
ing. 1( the jury reached the conclusion that the brakes were
not properly set on those two cars, we can find no fault with
their verdict. 'J'hose two cars were empty cars. They pre-
sented to tlie wind a broad surface and were comparatively
easily moved, and coming with the force of the wind against
the loaded coal-car. even if the brakes on the latter were sot,
would probably loosen them. and. as the grade was from that
point down, the cars would easily move down the track.
Dec. 1903.] Jones v. Kansas City etc. E. R. Co. 447
The fact that there was no derail switch there was not per
se negligence, and it was not so treated by the court. Since
the law imposes on the master no higher degree of care than
that which it denominates reasonable, it does not require him to
furnish absolutely safe or even the best ^*^ known appliances.
Yet when his conduct in this respect is on trial, it is proper
for the jury to know what appliances are in common use in
that kind of business. It has been said by a very high author-
ity that in the operation of a dangerous business, the master is
guilty of negligence if he fails to furnish the best, well-known
and reasonably attainable implement: Mather v. Eillston, 156
U. S. 391, 15 Sup. Ct. Eep. 4G4, 39 L. ed. 464. We do not
understand that case as laying down any stricter rule in refer-
ence to the master's duty in that respect than that he was to
do all that a reasonably prudent master, mindful of the dan-
gerous character of his business, would ordinarily do to protect
the lives of his servants. That is the law in this state.
AVe do not, therefore, say that the defendant in this case was
negligent because the sidetrack was not equipped with a derail
switch, although it is quite plain that if it had been so equipped
this accident would not have occurred. And before passing
this point, we may as well say now (since it is the only founda-
tion for the plea of contributory negligence) that the maintain-
ing of the sidetrack Avithout the derail switch was not such
an obvious danger as to authorize the court to pronounce the
act of the locomotive engineer in continuing in the service neg-
ligence as a matter of law. If. the danger was not obvious
to the master, it was not obvious to the servant. Therefore, as
it affects both the master and the servant, the question of
whether the sidetrack without the derail switch was a reason-
ably safe appliance was a question for the jury. If tlie master,
in the exercise of his right to choose between two appliances,
chooses the one less safe, the fact should make him the more
careful to properly use the one he selects.
Under the evidence in this case, the trial court did right in
refusing the instructions looking to a nonsuit.
3. Appellant complains of the following language in instruc-
tion 1 given for the plaintiff: ^^** "The court instructs the
jury that if you believe and find from the evidence that ....
on or about said date the defendant placed or had on its switch
or sidetrack at La Cygne, Kansas, three certain freight-cars
and negligently failed and omitted to fasten and secure said
cars on said switch or sidetrack, and that by reason of said
448 American State Reports, Vol, 101. [Missouri,
negligent failure and omission, if it was negligent, said cars
escaped from said sidetrack, etc., then your verdict should be for
plaintiffs."
The objection is to the words "fasten and secure," and it is
argued that these words imply the duty of making the cars
absolutely incapable of getting loose. Even standing alone, the
instruction would not have been liable to the meaning. The
greater part of the evidence for both plaintiff and defendant
related to the subject of fastening and securing the cars on
the sidetrack by means of brakes and blocks. It was shown
that sometimes, when brakes were not considered sufficient,
blocks were used, but when the brakes were sufficient, blocks
were not used. All the fastening or securing that the jury
had heard about was by means of brakes and blocks, and they
could not have interpreted the instruction as meaning that it
was the duty of the defendant to have anchored the cars witli
chains. The instruction uses the term "negligently failed,"
and it was followed by an instruction defining the word "neg-
ligent." Another instruction for plaintiff distinctly told the
jury that the defendant was not bound to use any particular
device to prevent the cars from escaping, but only reasonable
and ordinary care, taking into consideration appliances and
means in common use. Tlie instruction given at the request
of defendant also made it impossible for a jury of ordinary in-
telligonee to have given tlie interpretation to tlie words "fastcMi
and secure" tliat appellant apprelicnds was given them. Those
instructions, on this point, were to the effect that the jury must
not look to any one instruction alone, hut all the instructions
v/ere to be taken together; that they ^^^ must look to the evi-
dence alone for the facts: that the defendant did not owe
its servant any duty to nuike his surroundings absolutelv safe,
but. in that respect, to use only "such care as a reasonably
ciireful cni])]oyer would use in regard to the place where and
the aj)])liances with which he had to work. And so. if you
believe from the evidence that defendant used sueh care with
regard to its tracks and cars, and that, in s[)ite of it, the col-
lision took jilace, there was no one in law to blame therefor,
and your verdict must be for the defendant." We discover
no error in jilaintifT's first instruction.
Appellant, in its brief, says that the second instruction for
plaintiff is erroneous, but does not specify the particulars in
which it is so, and we perceive none.
Dec. 1903.] Jones v. Kansas City etc. E. R. Co. 449
The third instruction for plaintiffs is complained of because
it says: "And in determining whether it [the defendant] did
use reasonable and ordinary care in that regard, you may take
into consideration the appliances and means, if any, which were
adopted and in common and general use at the time for that
purpose, at similar places, by prudently and properly conducted
railroads.'*
The argument is that there was no evidence tending to show
that there was any appliance in general use which was not in
iise by the defendant at this place. The evidence for the plain-
tiff tended to show that it was no unusual occurrence for cars
to be blocked on a sidetrack; that evidence was answered by
the defendant with evidence tending to show that when the
brakes were good and well set and the track level, blocks were
not ordinarily used. On the part of the plaintiff, the evidence
tended to show that derail switches were in common use on
this and other railroads; this evidence was met by the defend-
ant with expert evidence tending to show that such switches
were not used when the sidetrack was as nearly level as this
was, and that they were of questionable utility anyway. The
court would have been compelled to have usurped the province
of the jury, ^^^ and have decided those questions of fact in the
defendant's favor, before it could have refused the plaintiff's
third instruction. It is also contended that the instruction
was erroneous in omitting to call the jury's attention to tbe
risk assumed by the servant when he went into the business.
There was nothing in the evidence on which to predicate a
hypothesis that the accident was the result of a condition ordi-
narily incident to the business, unaided by the negligence of the
master.
The storm theory was the only real defense in the case. If
the storm was not of such unusual violence that it could not
reasonal)ly have been anticipated and its effects guarded against,
then, the cars would not have been found running wild, un-
less the ordinary precautions to hold them in place liad been
neglected. There was evidence tending to sliow that the ac-
cident resulted from the effect of such an unusual storm, and
the jury were instructed, in very clear language, to render
their verdict for the defendant if they found that to be the fact.
And, in another equally explicit instruction, the jury were told
that if the death of the plaintiff's husband resulted from one of
the ordinary perils incident to the business, she could not re-
Am. St. Rep. Vol. 101-29
450 American State Re'ports, Vol, 101. [Missouri,
cover. Appellant has no cause to complain of the third instruc-
tion.
The instruction as to the measure of damages is as follows:
"The court instructs the jury that if you find for the plaintiffs
you should, in assessing their damages, assess the same with
reference to the pecuniary loss, if any, sustained by the wife
and child of the deceased: 1. By fixing the same at such sum
as you may believe and find from the evidence would equal the
probable earnings of the deceased, taking into consideration
his age, business capacity, experience, habits, health and energy,
during what would probably have been his lifetime, if he had
not been killed; 2. By adding these to the value of his services
in the attention to and care ^'^ of his family and the educa-
tion of his child, in all not to exceed the sum of ten thousand
dollars."
It is complained of that instruction that it gives, as the
measure of damages, all the wages that the deceased would
probably have earned during the period of his life expectancy,
without taking into consideration natural contingencies, and
without considering that part of his earning at least would not
necessarily or naturally have been given to his wife and chil-
dren. The instruction is liable to that interpretation, altliough
in the first part of it the jury are told that they must assess
the damages with reference to the pecuniary loss, if any, sus-
tained by the wife and child, Reading all tlie clauses of the
instruction together, they may be construed to mean that the
jury are to calculate from the evidence the probable amount
of earnings of plaintiff's husband if he had lived the full pe-
riod of his life expectancy, then to estimate how much of tliat
amount would probably have inured to the benefit of the wife
and child and to that add the pecuniary value of the husband's
and father's personal service in the care, maintenance and rear-
ing of his family. But since the instruction as given is liable
to the construction appellant puts upon it, we cannot give it
our approval for a precedent. The evidence showed that the
plaintiffs husband's life expectancy was thirty-two years, and
that he was, at the time of his death, earning fifteen hundred
dollars a year. At that rate, he would have earned in the full
period of his life, over forty thousand dollars. The plaintiff
was not entitled to all the wages her husband, on that basis,
would have earneil. Tt was proper for the jury to take into
account what he was earning, liis capacity to earn, and probable
Dec. 1903.] Jones v. Kansas City etc. K. E. Co. 451
duration of his life, but they ought also to take into account
the contingencies to which his life was subject and estimate as
best they could from the evidence how much of his earnings
would probably have inured to his wife and child, and what
the pecuniary value of his services to them would have been.
Of course, the estimate on either of ^^* these points must, to a
great extent, partake of the nature of conjecture, but as we
have no more certain means we must make the wisest use we
can of the means we have.
But although we cannot approve the instruction, we do not
feel justified in reversing the judgment on that account, because
it is very apparent that the jury did not put on it the construc-
tion appellant does, since they rendered their verdict for only
five thousand dollars, when, under the instruction they were
at liberty to assess the damages as high as ten thousand dollars,
that being the limit of the Kansas statute. No one can say,
under the circumstances of this case, that five thousand dol-
lars was too much for the loss of the husband and father of
this family.
We are expressly forbidden by statute to reverse a judgment
for an error not ''■'materially affecting the merits of the action" :
Eev. Stats. 1899, sec. 865.
The court refused several instructions asked by defendant,
and the refusal of them is assigned as error. But what we
have already said expresses our views on those instructions, and
discussion of them would be, in the main, a repetition of what
has gone before.
There was no error in admitting evidence that derail switches
were in use in other sidetracks on this road, nor in admitting
in evidence the printed rules of the company regarding the pre-
cautions to be taken to prevent cars escaping from a sidetrack.
On the whole record we find no error '^materially affecting
the merits of the action."
The judgment is affirmed.
Brace, Gantt and Fox, JJ., concur.
Robinson, C. J., Marshall and Burgess, JJ., concur in the
result.
Tests to Determine Who are Fellow-servants are stated in the recent
eases of Chicago City Ry. Co. v. Leach, 208 111. 198, 100 Am. St.
Kep. 210, 70 N. E. 222; Kelly Island Lime etc. Co. v. Pachuta, 69
Ohio St. 462, 100 Am St. Rep. 706, 69 N. E. 988; Grant v. Kevstone
Lumber Co., 119 Wis. 229, 100 Am. St. Rep. 883, 96 N. W. 535. Aa
452 American State Eeports, Vol. 101. [Missouri,
to whether railway employgs on the same train are fellow-servanta,
see Brewster v. Chicago etc. Ry. Co., 114 Iowa, 144, 89 Am. St. Rep.
348, 86 N. W. 221; Grattis v. Kansas City etc. R. R. Co., 153 Mo. 380,
77 Am. St. Rep. 721, 55 S. W. 108, 48 L. R. A. 399; notes to Fisk v.
Central Pacific R. R. Co., 1 Am. St. Rep. 32; Mast v. Kern, 75 Am.
St. Rep. 608-613. As to whether railway employes on one train are
fellow-servants with employes on another train, see Chicago City Ry.
Co. V. Leach, 208 111. 198, 100 Am. St. Rep. 216, 70 N. E. 222; notes
to Mast V. Kern, 75 Am. St. Rep. 610; Fisk v. Central Pacific R. R.
Co., 1 Am. St. Rep. 32; Fox v. Sandford, 67 Am. Dec. 595. And as
to whether switchmen are fellow-servants with trainmen, see the note
to Mast V. Kern, 75 Am. St. Rep. 637.
The Doctrine of Assumption of Risks will be found discussed in the
monographic notes to Houston etc. Ry. Co. v. De Walt, 97 Am. St.
Rep. 886-900; Brazil Block Coal Co. v. Gibson, 98 Am. St. Rep. 314-
321.
SCHUBACH V. McDOXALD.
[179 Mo. 163, 78 S. W. 1020.]
INJUNCTIONS — Jurisdiction to Issue. — Courts of equity alone
have power to issue injunctions, and they never exorcise this power
to allay mere apprehensions of injury, but only when the injury is
imminent and irreparable, (p. 459.)
INJUNCTION— xTurisdiction— Writ of Prohibition.— If the
court has jurisdiction over the subject matter, it has the power to
decide whether a petition for an injunction does or does not state a
cause of action; and the mere failure of the petition to state a cause
of action, or the defective statement of a good cause of action in
no way affects the jurisdiction of the court, or justifies the issue of a
writ of prohibition to prevent it from acting, (p. 459.)
INJUNCTION Against Ticket Scalping — Jurisdiction -Con-
crete Case. — A petition for an injunction against ticket brokers re-
citing that certain excursion tickets, mileage tickets and commuta-
tion tickets have been issued, or will be issued, from time to time
by a railroad company, based upon a consideration of reduced rates,
which by their express terms are to be good only in the hands of the
original purchaser, and that it will be impossible, impracticable, or
at any rate unbearably inconvenient, for the original purchaser to
be identified and have the return ticket stamped, or for the train
con<luctors to determine whether the person attempting to ride on
such return ticket is the original purchaser or not; that it would be
a fraud upon the railroad for anyone, except the original purchaser,
to ride upon such return tickets, and a framl for the original pur-
chaser to sell such return tickets to the ticket brokers, and for such
brokers to sell such return tickets to any tliird person to be b}' him
80 used, or upon the representation that they would entitle the buyer
to so ride thereon; that, in the nature of things, the railroad could
never ascertain that such frauds were about to be committed until
after trains had departed and such tickets were presented to train
conductors, an.l that it would then be too late to ask for or to receive
injunctive relief against the perpetrators of such frauds, and that
the ticket brokers are insolvent so that no adequate remedy at law
could be had against them, and further, that even if such frauds
Dec. 1903.] ScHUBACH v. McDonald. 453
could be discovered in time to ask specific relief in each case, it
would involve the prosecution of a multiplicity of suits, and pray-
ing for an injunction to restrain ticket brokers from buying, selling,
or dealing in such nontransferable tickets, states a concrete case as
to tickets then held by ticket brokers, and presents a live subject
matter, between live parties, which gives the court power and juris-
diction to issue the injunction, and a writ of prohibition will not
lie to prevent the court from acting and issuing such injunction,
(p. 462.)
PROHIBITION, WRIT OF— Office of. — A writ of prohibition
can never be made to perform the functions of an appeal or writ of
error, and lies only where a court, or tribunal clothed with judi-
cial powers, acts in relation to matters over which it has no jurisdic-
tion, or having jurisdiction over the subject matter, acts in excess
of its jurisdiction, (p. 462.)
INJUNCTION Against Ticket Scalpers — Petition to Confer
Jurisdiction. — A petition by a railroad company for an injunction
against a ticket broker to restrain him from dealing in special tickets,
which recite upon their face that they are issued at reduced rates
and are nontransferable, but which do not relate to any particular
occasion, states a concrete case which a court of equity has jurisdic-
tion to hear and decide, and a writ of prohibition will not issue
against it. (pp. 464, 465.)
RAILROADS — Power to Issue and Affix Conditions to Special
Tickets. — A railroad company may issue special tickets, based upon
reduced rates, make them nontransferable, and valid only in the
hands of the original purchaser, and such tickets may be limited as
to time, or as to oecnsion, or they may be unlimited as to time or
occasion and the original purchaser of such ticket cannot assign
or transfer it. or any rights whatever thereunder, to any third per-
son, (p. 466.)
RAILROADS — Rights Under Special Nontransferable Tickets.
The purchaser of a special railroad ticket at reduced rates, non-
transferable on its face cannot sell or transfer it to a third per-
son to be used by him or another, and if he does the railroad com-
pany may invoke the aid of a court of equity to cancel the contract
because of the fraud thus perpetrated, or if the ticket is used by
another, it may sue for damages for a breach of the contract, (pp.
466, 467.)
INJUNCTION Against Ticket Brokers.— Ticket brokers who
assert a right to buy and sell nontransferable railroad tickets, issued
and to be issued, notwithstanding their terms, and notwithstanding
the fact that the original purchaser can confer no rights upon any-
one thereunder, thereby threaten to invade an existent property
right of the railroad, which owing to the insolvency of tlio brokers
and the nature of their business, will work irreparable injury to the
railroad, and this entitles it to an injunction to prevent such brokers
from so doing, (p. 409.)
INJUNCTION Against Railroad Ticket Brokers.- There is an
existent controversy concerning a legal subject matter between live
parties presented for adjudication and within the jurisdiction of the
court, where a petition for an injunction, together with the return
of the rule to show cause, show that defendant ticket brokers have
in their possession and intend to buy, and assert a property right
in nontransferable tickets issued by a railroad company, and "sold^or
to be sold to such brokers by original purchasers and which such
brokers threaten to sell to others, (p. 470.)
454 American State Repoets, Tol. 101. [Missouri,
CONSTITTJTIONAIj law — Injunction Against Railroad Ticket
Brokerage. — 'A court in granting an injunction restraining ticket
brokers from buying and selling nontransferable railroad tickets, is-
sued and to be issued, does not infringe upon the powers nor invade
the province of the legislature, (pp. 470, 471.)
Judson & Green and H. W. Bond, for the petitioners,
G. P. B. Jackson, E. S. Roberts, Johnson & Richards and C.
C. Allen, for the respondents.
^"^^ MARSHALL, J. These are original proceedings against
the defendant judges of the circuit court of the city of St. Louis,
to prohibit them from further entertaining jurisdiction in cer-
tain injunction suits, pending before them in said court, where-
in the railroads that are joined as defendants are plaintiiTs, and
the plaintiffs herein are the defendants. A preliminary rule
was issued by one of the judges of this court, the defendants
made return thereto, and the plaintiffs moved for judgment
upon the pleadings.
The controversy is this: The defendant railroads have sys-
tems extending over a large portion of the United States and
have termini in St. Louis. The plaintiffs herein are ticket
brokers engaged in business in St. Louis. The railroads, each
for themselves, instituted about fifty suits in the circuit court
of St. Louis asking injunctions against the plaintiffs herein,
and other ticket brokers in that city. The petitions are prac-
tically alike.
The substance of the averments of the petition i^ fairly ptat(>d
by one of the counsel for the defendants to be as follows:
"That in the year !l90-i the Louisiana I'urchasc Exposition Com-
pany will I'.old a World's Fair at St. Louis, to wliicli all of the
nations of the world have been invited, ^'^^ to wliicli 2;'.()(i0
citizens have sul)scribed, and tlie fedci-al government contril)-
uted $.",,000,000, the city of' St. Louis $.5,000,000, the subscrib-
ers $5,000,000, and the state of ]\rissouri $1,000,000, for a
state exliibit. That various meetings and ccremonic^s will tako
jilace before and during the fair. That to enable the ])COple to
attend the fair and such meetings and ceremonies, excnrsion
tickets will be issued from time to time; that tiKn' will attend
in such large numlicrs that it is impraetieable to secure their
signatures to tlie return ])arts of the tickets. That for tlie
same reason identification is impractical)le.
"That in addition to these World's Fair tickets, said railroad,
from time to time, issues nontransferable 'excursion' tickets.
Dec. 1903.] ScHUBACH v. McDonald. 455
'mileage' tickets and 'commutation' tickets below the regular
one-fare rate for various meetings, assemblages and purposes.
That such tickets are by their express terms, set forth therein,
good for the transportation of the original purchaser alone and
void in the hands of others. That by virtue of the terms of
said tickets, if presented by one other than the original pur-
chaser, the x3onductor must lift the same. That the sale of
such nontransferable tickets, where they are interstate, is for-
bidden by the interstate commerce law, and where within the
state, is forbidden by the laws of the state of Missouri, because
the purchaser would thereby get a lower rate than the general
public. That the sale of the same is not only void for that
reason, but because it is a fraud on the purchaser and on the
railroad company or a joint fraud on both. That where per-
sons purchase such tickets innocently it frequently leads to
their being ejected from trains because said scalpers represented
such tickets to be good, and that where the purchaser knows
they are nontransferable and void in the hands of persons other
than the original purchaser, the buyer deceives the conductor
and servants of the railroad, and that it is a fraud on the plain-
tiffs. That some of the tickets so issued have a return coupon,
^'''' which must be presented to the agent before presentation
for the return trip.
'•'That the defendants are residents of the city of St. Louis
and engaged in the business of ticket broker or scalper in tlie
city of St. Louis, and that they have full knowledge of the
character of such tickets, that they are issued at a special rate,
and that they are null and void in the hands of any person
other than the original purchaser. That they either deceive
the buyer by representing them as good or deceive tlie railroad
by aiding the buyer in using them, and that Herman Schubaeli
is engaged in tlie business of selling such tickets and j^ropose.s
to continue the sale of the same and regularly deal in the sale
of said nontransferable tickets, thus defrauding tlie railroad or
the buyers of the tickets, or both.
"That by reason of tlie inipo.ssibility of detecting such frauds
the plaintitf is subjected to recurring loss and injury and tlH>
innocent buyer to pecuniary loss, annoyance and humiliation.
That the burden cast on the conductors of detecting sucli fraud-
ulent tickets subjects the railroad company to constant dan,i;or
from suits for damages for unavoidable errors and subjects the
railroad and public to interruption and delay in the operation
of trains.
456 American State Eeports, Vol. 101. [Missouri,
"That the railroad company has no way of discovering who
the persons are who so defraud it, or who are thus defrauded,
by the purchase of such nontransferable tickets, because of the
impossibility of securing evidence of such frauds, and that if
such frauds were detected it would lead to a multiplicity of
suits. That the defendants are financially irresponsible and no
judgment at law could be collected. That in consequence there
is no adequate remedy at law.
"That it is the constant practice of the plaintiff and its con-
necting lines to issue tickets at reduced rates to the traveling
public, which by their terms are nontransferable ^"^^ and con-
stitute a special contract between the plaintill and the original
purchaser wliereby the original purchaser agrees that the ticket
shall not be transferred by him to any other person.
"That the defendants are and for a long time past have been
engaged in the business of buying, selling and dealing in such
tickets and inducing the original purchasers to sell the same."
The prayer of the petition is that tlie defendants therein
(the ticket brokers) be enjoined from buying, selling or deal-
ing in tickets issued by the railroad, plaintill therein, v.hicli
by the terms tliereof are nontransferable.
The judges severally issued rules upon the defendants there-
in tu sliow cause on a day certain why injunctions should not
issue as prayed. Upon the return being inade to tlie rule tlie
six circuit judges before whom such injunction cases were
])ending sat togctlier, and the nuitter was fully argued l)efore
tliem, with tlie result that they determined that temporary in-
junctions should issue, and accordingly each of the jiulges, sep-
arately, issued injunctions in the following form : "Now at this
day conic the jjarties hereto, hy their respective attorneys, iinder
the order to show cause heretofore issued herein, and submit
the ai)])lieation for a temporary injunction to the court upon
the petition and the return of the defendant to the order to
show cause and the court having duly considered the same and
being sullic-iiMitly advised in the premises, doth order that u])on
jdaintilT's giving l)ond in the sum of two tliousand five hundred
dollars conditioned according to law. with good and sullicient
surelv or sureties to lie approved by the court, or judge or clerk
thereof in vacation, the defendant, his agents, servants and
eniployes and all other persons acting for him either directly
or indirectly, he, and are hereby enjoined and restrained until
the further order of the court from buying, selling, dealing in
or soliciting the purchase or sale of any mileage passenger
Dec. 1903.] ScHUBACH v. McDonald. 457
ticket, or ^"^^ any part thereof, or any excursion passenger
ticket, or any part thereof, or the return coupon thereof, or
any part thereof, or any commutation passenger ticket or any
part thereof, now being issued, or heretofore issued and sold,
or which may hereafter be issued and sold by plaintiff for pas-
sage over its railroad, or issued by any other railroad for use
over plaintiff's road, or any part thereof, where any of the above
described tickets were sold and where it appears upon any such
ticket, coupon or return ticket that same was issued and sold
below the regular schedule rate under contract with the orig-
inal purchaser entered upon such ticket and signed by such or-
iginal purchaser and that such ticket is nontransferable and
void in the hands of any other person than the original
purchaser; and from soliciting, advertising, encouraging or pro-
curing any person other than the original purchaser of such
ticket to use or attempt to use the same for passage on any
train or trains of the plaintiff. Provided, however, this order
shall not apply to the sale of any such aforementioned and de-
scribed tickets that were purchased by defendant from plaintiff
or any of plaintiff's duly authorized agents and not for defend-
ant's use as a passenger over plaintiff's road."
Tlioroupon the defendants in sucli injunction suits applied
to one of the judges of this court for writs of prolnbition to
prohibit the said judges from enforcing sucli injunctions and
from entertaining further jurisdiction of such injunction suits.
The petitions for proliibitions arc alike, and predicate a right
of action upon a charge that the circuit judges had no jurisdic-
tion or acted in excess of their jurisdiction in the premises
in the following respects :
"Plaintiff states that in and by its aforesaid proceedings said
court and defendant, as judge thereof, transcended and ex-
ceeded its lawful jurisdiction in the following particulars:
"1. Said petition for injunction stated no matter or thing
upon which a court, exercising ef|uity powers, ^'^ could grant
any injunction, or the particular writ awarded in this case.
"2. Said petition for injunction is not based upon any spe-
cific i)roperty for the protection of which judicial prot^^-tion is
sought. But it is attempted by the injunction sought and
granted in said cause to lay down a rule of civil conduct, so
tliat the business of this plaintiff would be permanently de-
stroyed by the exercise of the judicial power thus exercised
v>-ithout reference to any specific existing property.
458 American State IIepoiits^ Vol, 101. [Missouri,
"3. Said petition for injunction and the temporary injunc-
tion thereon granted in prescribing a rule of civil conduct re-
gardless of any existing property, is an attempted usurpation
of the legislative power of the state, which alone can prescribe
a rule of civil conduct covering future transactions, having
no relation to existing properties and their judicial protection.
"4. That the necessary effect of this attempted regulation
of civil conduct by a blanket injunction covering property
rights hereafter to be created and acquired w^ill be the substi-
tution of summary hearings in contempt for the orderly de-
termination of controversies by court or jury when contro-
versies as to existing property rights are presented for hearing.
"5. Said injunction serves the purpose of taking the property
of plaintiff without 'due process of law.'
"6. Said injunction is against the law of the land and there-
by, if permitted to stand, destroys a lawful avocation and busi-
ness of plaintiffs.
"7. Plaintiff is remediless in this, that his business is inter-
rupted and destroyed by the granting of the injunction herein,
and that the remedy by motion to dissolve in the circuit court
is wholly inadequate, as even if said injunction should be (iis-
solved, it may be maintained in force by an appeal and in any
event plaintiff's business would be wholly destroyed before tiic
final determination of the same could be reached by this un-
warranted ^^^ and illegal proced\ire of said court, outside of
its lawful jurisdiction.''
The defendants made return to the prelimiiiarv rules, set-
ting up the proceedings in the injunction cases in the circuit
court, and justifying the action of tlie circuit judj^es, and main-
taining the jurisdiction of that court. Tlio ])laintiirs by way
of replication ask that tlie preliminary rule in prohibition be
made absolute, and thus the issues are made up.
For the sake of brevity the plaintiffs herein will bo herein-
after referred to as the '•'ticket brokers," and the defendant
railroads as the '"railroads."
1. IN'd.uecd to its essentials and crystallized, tlio tieket Ijrok-
ers' p<isiiion is, that no ''concrete ease"' is stated in the injunc-
tion suits, which a court lias power to deal with.
Or otherwise stated, that there is no existing controversy
between the tieket l)rokers and the railroads, wliieh could con-
stitute a cause of action, u]ion wliich a court could act.
Or amplified, that a court of equity has jurisdiction to issue
injunctions as a class, but it has no power to issue an injunc-
Dec. 1903.] ScHUBACH v. McDonald. 459
tion where only abstract rights are involved, or where the in-
jury is merely apprehended or feared and is not immediate,
impending and imminent, and that to authorize a court that
has jurisdiction to act, "there must be an existent basis of
facts affording a present right which is directly threatened by
the action sought to be enjoined. It has no power to enjoin
unless the conditions have already arisen and come into being,
which could be injured by the acts sought to be restrained^';
and that courts cannot determine the rights of parties in ad-
vance of an actual, existing controversy concerning them.
^®^ Or as counsel happily express it: "The abstract right
must assume a concrete form before it becomes property in the
judicial sense, capable of judicial protection."
These are fundamental essentials in the law, and it has al-
ways been true that there must be an actual, live subject mat-
ter, as well as actual live parties, to every suit. It is also true
that courts of equity alone have po^ver to issue injunctions, and
that they never exercise this power to alTay mere apprehen-
sions of injury, but only when the injury is imminent and ir-
reparable: Business Men's League v. Waddill, 143 Mo. 495, 45
S. W. 2G2, 40 L. E. A. 501; Lester Real Estate Co. v. St.
Louis, 169 Mo. 234, 69 S. W. 300.
The railroads and the circuit judges do not controvert these
propositions. The matter, therefore, compresses itself into the
question whether or not a Basic subject matter, over which a
court of equity has jurisdiction, was presented to tlie circuit
court for adjudication by the injunction suits. That is,
whether a matter was presented which that court has power to
deal with, and not whether such a matter was inartificially or
defectively presented. In other words, tlio question is one oE
jurisdiction and not of pleading, for if tlie court luid jurisdic-
tion over the subject matter, it had tlie power to decide whetlicr
tlie pleadings were or were not properly drawn, and also to
decide wlietlier or not the plaintiff was entitled to tlie relief
sought. If a court has tlie power to act, its jurisdiction is in
no wise impaired by the consideration wlietlier it acted in ac-
cordance with the law or erroneously. Given the jurisdic-
tion, all, else is a mere matter of error, to be corrected on a])-
peal. Or, further illustrated, if the court has jurisdiction over
the subject matter, it has the power to decide whether the peti-
tion does or does not state a cause of action, and the mere
failure of a petition to state a cause of action or the defective
statement of a good cause of action, in no way affects the
460 American State Eeports, Vol. 101. [Missouri,
jurisdiction *^ of the court: State v. Scarritt, 128 Mo. 339,
340, 30 S. W. 1026.
The crucial question, therefore, is, Do the petitions of the
railroads for injunctions against the ticket brokers present a
concrete or an abstract case?
In the solution of this question the decision of the supreme
court of the United States, in the case of Mosher v. St. Louis
etc. R. R. Co., 127 U. S. 390, 8 Sup. Ct. Eep. 1324, 32 L. ed.
249, establishes the first postulate of the proposition. It is
true, as the ticket brokers claim, that that was not an injunc-
tion suit, but the form of the action is immaterial, for it is
the legal principles deduced and the rules announced that are
important and pertinent.
That was a suit for damages for being put off a train. The
plaintiff purchased from the defendant, at St. Louis, a ticket
from St. Louis to Hot Springs and return. The ticket by its
terms required that the original purchaser should identify him-
self to the satisfaction of the defendant's agent at Ilot Springs,
and that the return ticket should be ollicially signed and
stamped by the agent at Hot Springs, all of which the original
purchaser agreed to "in consideration of the reduced rate at
which this ticket is sold." The plaintiff failed to so identify
himself, and failed to have the return ticket so stamped, and
in consequence was put off of the train, and he sued for damages.
The lower court sustained a demurrer to the petition, and the
su|)rcme court of the United States affirmed the judgment,
holding that a railroad company has a riglit to make a contract
with tlie purcha>er of a reduced rate ticket, tliat t1ie original
purcliaser sl)all so identify himself, and that the return ticket
shall be so signed and stamped, and that the reduced rate at
wliich the ticket is sold affords a consideration for such a con-
tract.
In other words, that for a valuable consideration a railroad
may enter into a contract that tlie ticket sold to tlie passenger
sliall Ije nontransferable, and tliat the return portion shall not
entitle even tho original purchaser **^ to a return trip, unless
he so id(>ntifi<'s himself and has the return ticket so stamped.
This is manifestly upon the principle that when persons,
sui juris, enter into contracts that arc not prohibited bv law,
based u])on a valuable consideration, tlioy must live up to them,
and that each has a j)ro])erty riuht in tlie contract which the
law will protect. In addition to this, the laws of this state
Dec. 1903.] ScHUBACH v. McDonald. 4G1
and the interstate commerce laws, while prohibiting discrimi-
nations, permit the railroads to issue excursion or commuta-
tion tickets at special rates: Rev. Stats. 1899, sec. 1127; 1 U.
S. Supp. Eev. Stats., p. 690, sec. 22, and vol. 2, p. 369, c. 61.
The second postulate in the case is, that the petitions for in-
junctions recite that World's Fair excursion tickets, nontrans-
ferable excursion tickets, mileage tickets and commutation tick-
ets have been issued, or will be issued, from time to time, based
upon a consideration of reduced rates, which by their express
terms are to be good only in the hands of the original pur-
chaser, and that it is or will be impossible, impracticable, or at
any rate unbearably inconvenient, for the original purchasers
to be identified in St. Louis and have the return ticket stamped,
or for the train conductors to determine whether the person
attempting to ride on such return ticket is the original pur-
chaser or not; that it would be a fraud upon the railroads for
anyone except the original purchaser to ride upon such re-
turn tickets, and a fraud for the original purchaser to sell such
return tickets to the ticket brokers and for the ticket brokers to
sell such return tickets to any third party to be by him so used
or upon the representation that they would entitle the buyer
to so ride thereon; that in the nature of things the railroads
could never ascertain that such frauds were about to be com-
mitted until after tlie trains had left St. Louis and such tick-
ets were presented to the train conductors, and tlien it would
be too late to ask for or receive injunctive relief against the
perpetrators of such **** frauds, and that the ticket brokers
are insolvent so that no adequate remedy at law could be had
against them; and further that even if such frauds could be
discovered in time to ask specific relief in each case, it would
involve tlie prosecution of a multiplicity of suits to meet the
exigencies.
This postulate also includes the fact that the injunctions
issued by the circuit court enjoined the ticket brokers from
buying, selling or dealing in any mileage tickets, and excur-
sion tickets or the return coupon thereof, or any commutation
ticket, now issued or hereafter to be issued, "where it appears
upon any such ticket, coupon or return ticket that the same
was issued and sold below the regular schedule rate under con-
tract with the original purchaser entered upon such ticket and
signed by such original purchaser that such ticket is nontrans-
ferable and void in the hands of any other person other than
the original purchaser."
4.62 American State Reports^ Vol. 101. [Missouri,
And bearing upon this proposition it is important to note
in this connection that while the return of the ticket brokers
to the rule to show cause why an injunction should not issue,
denies the power of the court to issue an injunction, on the
ground that no concrete case is presented by the petition, it
then very inconsistently sets up that it has been the common
practice of the railroads to issue mileage tickets, excursion tick-
ets and commutation tickets which are stamped on their face,
nontransferable, but that the practice and understanding of
the ticket brokers all over the United States is, that such tick-
ets may be transferred or sold, and that the name of the origi-
nal purchaser may be signed by anyone on the return ticket,
and that the ticket brokers in the litigation have a number of
such tickets, which they have purchased in good faith and un-
der the belief that they are transferable and would be honored
by whomsoever presented, and that the injunction asked would
render such tickets valuelcFS and would destroy the business of
the ^^^ ticket brokers, and therefore they ask the protection
of the court in that regard.
Upon the doctrine of "aider," therefore, the return of the
ticket brokers helped out the insufficiency, if any, that existed
in the petition, and unquestionably made a concrete case as
to the tickets that are now held by the ticket brokers and pre-
sented a live sulgect matter, between live parties, which tlie
court had power and jurisdiction over. Therefore, it cannot
now be said that the circuit court had no jurisdiction and as
that court had jurisdiction, quoad such tickets, prohibition
will not lie, for a writ of prohibition can never be made to per-
form the functions of an appeal or writ of error, and lies only
wliere a court, or tribunal clothed with judicial powers, acts in
relation to matters over which it has no jurisdiction or having
jurisdiction over the sul>jrct matter, acts in excess of its juris-
diction: State V. Aloe, 152 Mo. 4GG, 54 S. W. 494, 47 L. K.
A. 393; Davison v. Hough, 105 Mo. 5G1, G5 S. W. 731; State
V. Eby, 170 Mo. 497, 71 S. W. 52.
The case miglit be allowed to rest here, but there arc other
cogent, decisive and imperative propositions which must be
adjudicat<Ml to make tlio case complete.
It will be oliscrvod that reference is made in the petition
for an injunction to the approaching World's Fair in St. Louis,
and it is averred that in order to make it possible for persons
of ordinary means to attend it. the railroads have been induced
by the officials of the fair to agree to issue excursion tickets, at
Dec. 1903.] ScHUBACH v. McDonald. 463
greatly reduced rates, to all who desire to attend the fair or
the various meetings, conventions, etc., that will be held in St.
Louis at that time. And counsel for the railroads point out
that the courts have issued injunctions against ticket brokers
prohibiting them from dealing in nontransferable tickets that
have been issued by the railroads on the occasions of the Xash-
ville Centennial Exposition in 1897 (Nashville K. R. Co. v.
McConnell, 82 Fed. 66), the meeting of the Grand Army of
the Eepublic in Cleveland (Eailroad Co. v. Kinner, 47 Ohio
Law Bull. 294), *®^ the meeting of the Grand Army of the
Eepublic in Washington (Pennsylvania E. E. Co. v. Beekman,
31 Wash, Law Eep. 715), the meeting of the Confederate Vet-
erans in Xew Orleans, in May, 1903 (Louisville etc. E. E. Co.
V. Bitterman, 128 Fed. 176), the meeting of the National
Teachers' Association in Boston, in July, 1903 (Boston etc.
E. E. Co. V. Fogg, Super. Ct. Suffolk Co. Mass.), and the
dedicatory exercises of the World's Fair at St. Louis, in May,
1903 (Wabash E. E. Co. v. Wasserman, decided by Hon. H.
D. Wood, of the circuit court of the city of St. Louis).
Counsel for the ticket brokers meet this by saying: 1. That
all those cases were decided by courts of inferior jurisdiction;
2. That in the case of People v. Warden of Prison, 157 N. Y.
116, 68 Am. St. Eep. 763, 51 N. E. 1006, 43 L. E. A. 264, the
court of appeals of New York held a statute that prohibited
anyone except common carriers and their agents from selling
tickets for passage on railroads or vessels, to be unconstitu-
tional; 3. That, in the case of Delaware etc. E. E. Co. v. Frank,
110 Fed. 689, the United States circuit court for the western
district of New York denied an injunction against ticket brok-
ers as to special tickets for the Pan-American Exposition at
BulTalo, on the ground that the railroads had unlawfully com-
bined to fix rates for such exposition; 4. That in New York
Central etc. E. E. Co. v. Eeeves, 85 N. Y. Supp. 28, 40 iMisc.
Eep. 490, decided October 15, 1903, and reported in New York
Law Journal of October 24, 1903, volume 30, page 21, Judge
Lambert, of the supreme court of New York, denied an in-
junction against the ticket brokers which sought to proliibit
tliem from dealing in tickets that were nontransferable on
their face, and held that the purchaser of such a ticket had a
property interest in the ticket, which he could sell, notwitli-
standing that by the terms of his contract with the railroad
the ticket was on its face nontransferable, and that while tlie
railroad could lawfully refuse to transport the transferee or any
464 American State Reports, Vol. iOl. [Missouri,
*®® other person than the original purchaser, on the ticket, it
was not entitled to an injunction to prevent the ticket brokers
from buying and selling such tickets; 5. Tliat in all the cases
cited by counsel for the railroads "a special injunction issued
under the special circumstances of the special ticket for the
special occasion." Or, otherwise stated, that upon special oc-
casions the railroads can lawfully issue special tickets at re-
duced rates, which are nontransferable, and which the ticket
brokers may be enjoined from dealing in, but that .when the
railroads issue! special tickets, which upon their face show the
contract between the purchaser and the railroad to be that they
are issued at reduced rates and are not transferable, such tick-
ets may be dealt in by the ticket brokers, and the courts can-
not interfere, because they do not relate to a special occasion,
such as an exposition, a meeting of the Grand Army of thv?
Republic, or of the Confederate Veterans.
In other words, that the jurisdiction of a court of equity to
issue an injunction in such cases depends upon tlie occasion
that gave use to the issuance of such tickets, and that if the
petition for an injunction recites that special tickets have been
issued for a special occasion whicll appear on tlieir face to have
been issued at special rates and to be used by a specially named
person, a concrete case is presented wherein the court can en-
join the ticket brokers from dealing in tliem, but if a special
ticket is issued which ap})oars on its face to have been issued
at a special rate and to be used by a specially named person,
but which was issued generally and not for a special occasion,
only an abstract right is involved and a court of equity has
no jurisdiction, and a writ of prohibition will lie against it.
Of course it must he understood that this is not the way the
counsel for tlie ticket brokers state the matter, but it is the
everyday meaning and result of their contention.
*^® But even if the contention of counsel for the ticket brok-
ers that such special tickets must relate to a S])eeial occasion
be true, the writ of prohibition asked lierein would have to be
denied as to all the railroads except the [Missouri Pacific, for
■all except that road aver that they have issued or are about to
issue such special tickets for the special occasion of the World's
Fair in St. I^uis, in 1904^. True, they say they also intend
to issue such special tickets from time to time, and the ^Missouri
Pacific railroad does not refer to the World's Fair at all. How-
ever, to allow this case to go off upon any such consideration
Dec. 1903.] • SciiUBACH v. McDonald. 465
or without squarely meeting and deciding it in its entirety,
would not be subserving the ends of justice.
Broadly stated, therefore, the question for decision is,
whether a petition by a railroad for an injunction against a
ticket broker to restrain him from dealing in special tickets,
which recite upon their face that they are issued at reduced
rates and are nontransferable, but which do not relate to any
particular occasion, states a concrete case wliich a court of
equity has jurisdiction to hear and decide. If it does, the writ
of prohibition asked for herein should be denied. If it does not,
the writ should go.
The power to contract, concerning a legal subject matter,
carries with it the right to make any kind of a contract in re-
lation thereto that the contracting parties may agree upon.
The power being unlimited, the nature and character and terms
of the contract to be made and the occasion that gives rise and
the business necessities or exigencies that prompt it, are all
matters of private convention between the parties. The power
to limit any kind of a contract in its operation to the contract-
ing parties, and to exclude from its benefits any third persons,
or to limit the contract as to the time it shall continue, or to
leave it unlimited as to time, is recognized in law. Thus, a
lease may prohibit the lessee from assigning, transferring or
subletting the ^'^ premises, either for the whole or any part
of the term. A copartnership agreement necessarily excludes
the riglit of any member to sell his interest and thereby sub-
stitute the pucliaser in his place as a member of the firm, and
such agreements may be limited or unlimited as to duration.
A contract of hiring gives no right to either party to assign or
transfer his interests or rights under the contract, and such
contracts may be limited or unlimited as to duration. These
illustrations are made, not because they constitute similar cases
to the case at bar, but because they show that when a right to
contract at all, concerning a particular subject matter, is con-
ferred by the law, and the riglit so conferred is unlimited, or
when the right to so contract arises out of the natural rights of
man, it is purely a matter of agreement between the contract-
ing parties what the terms, duration, character or nature of
the contract shall be.
The supreme court of the United States in IMosher v. St.
Louis etc. R. R. Co., 127 U. S. 390, 8 Sup. Ct. Rep. 1324, 32
L. ed. 249, and the statutes of the United States aud of this
state, recognize the right of a railroad to issue excursion or
Am. St. Rep. Vol. 101-30
466 American State liEroRTS, Vol. 101.- [Missouri,
commutation tickets, based upon the consideration of a reduced
rate. The right so conferred is not limited. There is no limi-
tation that such tickets can be issued only upon special occa-
sions. Neither is there any prohibition against the right to
make such tickets nontransferable. Persons who do not wish
to be so restricted and limited, can purchase the usual unlim-
ited, unrestricted ticket and pay full price therefor, and then
sell the unused portion thereof. But no one has any right to
buy a special ticket at a reduced rate, which on its face recites
that it is nontransferable and that it is supported by the con-
sideration of a reduced rate, and thereby agree to such limit-a-
tions, and thereafter violate his agreement by transferring it
to another, or to complain that he has not the riglit to trans-
fer it. And no third person can acquire any riglit or interest
or power or claim in or to the ticket or to the privileges con-
ferred thereby other than the original purchaser possessed
^^^ or could confer under it, and if the original purchaser had
no power to transfer it, no assignee of sucli purchaser could
acquire any rights under it, for the original })urcluiser could
convey none. It is wholly illogical and sophistical to say the
original purchaser has a property right in the ticket — the
piece of paper on which the ticket or contract is printed —
which he can sell and transfer, but that the assignee acquires
thereby no rights against the railroad, and it can refuse to
trans})ort him. Such reasoning confuses the piece of i)a])er
upon which a contract is written with the agreement of the
parties, ami erroneously separates the evidence of the contract
from the contract itself. Of course any man can physically
pass the piece of paper on which any kind of a contract is
written to another, but that will give such other jjci'son no
rights under the contract that is written on the ])iece of paper,
if the contract itself is nontransferable.
It foHows. therefore, that under the law it is competent for
a railroad to issue special tickets based upon reiluced rates,
and to make them nontransferable, and valid onlv in the hands
of the original purchaser, and that such tickets may be lim-
ited as to time, or as to occasion, or thev mav he unlimited as
to time or occasion, and that the original purchaser of such
tickets cannot a-sign or transfer such tickets or anv riglits
whatever then'uniler. to anv third ]ierson.
It also follows that if any jierson buys such special ticket,
and sells it to a tliird person, to he uscil l)y him or another, tlie
railroad can invoke tlie aid of a court of eriuitv to cancel the
Dec. 1903.] ScHUBACH v. McDonald. 4.67
contract because of the fraud thus perpetrated, or, if the ticket
is used by another, it can sue for damages for the breach of
such contract.
It also follows that if such a case at law or such a suit in
equity, as to a single such ticket, presents a concrete case, over
which a court has jurisdiction, a concrete case may likewise
be presented if it relates to all such special tickets, whether
they were all so purchased *^^ and so attempted to be trans-
ferred by the same person or not. To illustrate : If a railroad
should issue a thousand such special tickets, and if one ticket
broker should purchase the whole issue, and thereafter under-
take to throw them on the market and sell them contrary to
his agreement, or should actually sell them, and if the rail-
road company should invoke the aid of a court of equity or of
a court of law, in the one case or \ the other, there would be
no room for doubt that a concrete case would be presented,,
which the court would have jurisdiction to decide.
But counsel for the ticket brokers, inferentially, say that
while such conditions might present a concrete case, the pe-
titions for injunction in these cases, and the injunctions is-
sued by the court, cover not only such tickets as have been is-^
sued and sold, and as to which there is therefore an existing
contract and hence a right of property in the contract, but that
they also cover such special tickets as may hereafter be issued,
from time to time, and as to which there is no contract and
no property right, and which have not been sold and may never
be sold, and, therefore, no concrete case is presented, and that
the injunctions issued are "blanket injunctions"' — as counsel
call them — which undertake to prescribe a rule of civil con-
duct— which tlie legislature alone has power to proscribe — and
to punisli any infraction of such rule, by contempt proceeding,
instead of Ijy the usual remedies provided for a breach of such
rules, and that it is therefore "government by injunction" in-
stead of according to laws regularly enacted and enforced.
If tliis contention is well founded, a writ of prohibition
could not be too quickly issued l;y this court.
But there is no proper foundation in this case for such well-
known and generally accepted principles of law to a])plv to,
and the injunction issued l)y the circuit court does not oll'cnd'
against these principles.
The injunction a])})lies to all such special tickets ^-^'-^ as have
heretofore been issued, and to snch as are now beino- issued,
and which have already been sold, and it a])p!ies also to all
468 American State Reports, Vol. 101. [Missouri,
such special tickets as may hereafter be issued and sold. That
is, the injunction applies only to such tickets after they have
been sold, and after a contract has been entered into, and after
property rights under the contract have arisen, and after a
controversy in relation to such property rights has arisen, and
after an injury to such property rights has been threatened by
the ticket brokers, and after such injury has become imminent,
and under circumstances and conditions set out in the petition
which show, prima facie, that the damage resulting to sucli
property rights by the threatened, but as yet unperformed, acts
and conduct of the ticket brokers, would be irreparable, and
such as the law affords no adequate remedy for.
Such averments in a petition state a concrete case in equity,
which the court has power to deal with. In fact, the original
and primary office of a writ of injunction is to prevent a wrong,
an injury, being done. Therefore, if the contention of coun-
sel for the ticket brokers in this regard, that there can be no
concrete case until the defendant has already acted, be well
taken, it follows necessarily and logically that a preventive in-
junction can never issue, and the result of so holding would be
to abolish preventive injunctions altogether.
It has already been made clear that the law affords no ade-
quate remedy in cases of this kind, because of the insolvency
of the ticket brokers, and because of tlie nature of the business
and the frauds threatened upon the railroads, and upon inno-
cent tliird pereons who might be induced to purchase such
tickets from the ticket brokers, and because of the hundreds
and thousands of suits tliat would be necessary to redress the
invasion of the rights of the railroads under sucli contracts,
by the '^'* ticket l)rokcrs, and l-.ecause it would not be impos-
sible in the nature of things for the railroads to discover the
frauds in time to ask preventive or injunctive relief.
"An injunction is a judicial process issuing out of a court of
chancerv, wherehv a party is required to do or to refrain from
doini,' a ])articular thing. The most ordinary form of injunc-
tion is that which operates to ])revent the performance of an
act. 'y\\(' other fonn of injunction commands that an act shall
he done"': 10 Am. & Eng. Jmicv. of Law, 2d ed., p. 343.
And section iliil!) of the IJcvised Statutes of IS!)!) provides
that the reinedv hv writ of injunction sliall exist "to ])revent
the dointr of anv legal wrong whatever, wherever in the opinion
of the court an ade<[uate remedy cannot be afforded by an ac-
tion for damages."
Dec. 1903.] ScHUBACH v. McDonald. 469
By this, of course, is meant in any case that falls within
the class of cases that are properly cognizable in a court of
equity. Cases involving threatened frauds, where the defend-
ant is insolvent and the threatened injury would be irrepara-
ble, or where the redress of the injury would result in a multi-
plicity of suits, fall within the class of cases properly cognizable
in courts of equity: Sylvester Coal Co. v. St. Louis, 130 Mo.
323, 51 Am. St. Eep. 566, 32 S. W. 649 ; Michael v. St. Louis,
112 Mo. 610, 20 S. W. 666; 1 High on Injunctions, 3d ed., p.
12. The last-named author says: "The prevention of vexa-
tious litigation and of a multipilicity of suits constitutes a
favorite ground for the exercise of the jurisdiction of equity
by way of injunction."
Originally injunctions were preventive only, and it is only
within recent years that a mandatory injunction has sprung
into existence. Preventive injunctions necessarily operate upon
an unperformed and unexecuted act, and prevent a threatened,
but nonexistent injury. A concrete case is presented whenever
a riglit of the plaintiff is threatened by the defendant, and the
damage would be irreparable, and where protection of that
right belongs to the class of cases that are cognizable in ^^'^
equity. Of course, criminal cases do not fall within such a
class.
Measured by these standards the petitions for injunction
asked the preventive aid of a court of equity in respect to rights
of the railroad which a court of equity has power to protect
against invasion and injury by the ticket brokers, which injury
it is alleged is imminent, impending and irreparable; and that
this is so is the more clearly shown by the character of the
return to the order to show cause, wherein the ticket brokers
say they have invaded such rights of the railroads in the past
as to such special tickets, and have money now invested in tick-
ets of that character which will be lost if tlie injunction is
granted, and assert aa intention and right to continue to deal
in such tickets.
Therefore, as to the tickets that have been issued and sold
by the railroads and are now held by the ticket brokers, both
parties assert a property right therein, and hence there is an
existent controversy, concerning a legal subject matter, between
live parties, and consequently there is a concrete case presented
for adjudication to the circuit court, which it has jurisdiction
to decide.
470 American State Kepokts, Vol. 101. [Missouri,
It cannot, therefore, be said that the circuit court had no
jurisdiction as to those matters.
As to the tickets to be issued and sold hereafter, the rail-
roads have a right to issue and sell tickets of such character
as shall express on their face that they have been issued at a
reduced rate and are nontransferable, and the ticket brokers
assert a right to buy and sell and deal in them notwithstanding
the terms thereof, and notwithstanding the original purchaser
could confer no rights upon any one thereunder. There is,
therefore, an existent property right of the railroads which tho
ticket brokers say they intend to invade, the danger is imminent
and under the allegations of the petition the injury will be
irreparable, and in the very nature of the business the injury
cannot be adequately redressed ^^^ by an action at law, or in
any other manner than by a preventive injunction. A proper
case for the exercise of the powers of a court of equity, by a
preventive injunction, was therefore also presented for the de-
termination of the court as to this branch of the case. And in
granting such preventive injunctions the court of equity docs
not prescribe a rule of civil conduct, nor invade the province
of tlie legislative branch of the government, nor does it estab-
lish a "government by injunction.^' It only does what has al-
ready been done by courts of equity since their adoption into
the body of our institution — it enforces the rules of civil con-
duct prescribed by the organic law or the statute law or that
arise naturally and regulate all men, by guarding the rights
of one citizen against illegal invasion and irreparaljle injury by
another citizen, and which the citizen of his own force is unal)le
to guard for himself. And in the doing thereof, courts of equity
recognize no forms, no tecluiicalities, no delays, and no sliad-
ows, but act according to tlie dictates of good conscience, good
morals, good conduct, and good government, and thev compel
every man to act riglit, and to respect the riglits of otliers,
whether his conscience is quick enough to appreciate the dif-
fcrt'nco between right and wrong or uot^.
There is no merit in tlie contention tliat by granting tlie in-
junctions in question in this case, the court has infringed upon
the powers of tho legislative branch of the government. Tlie
court has createil no right in anyone. Tl)(^ court lia.s enacted
DO law or rule of conduct. The court lia.s simply protected
rights that are natural or were created ])y the legislature.
The right asserted by the railroads and denied and tlireatcned
bv the ticket brokers is a riirht that is natural to mankind. It
Dec. 1903.] ScHUBACH v. McDonald. 471
is a right that the legislature of this state and the Congress
of the United States have expressly conferred upon the corpora-
tion railroads, and which the supreme court of the United
States has expressly declared they possess. It is a right that is
guaranteed ^''^'^ to every man by the organic law of the land,
a right to contract concerning a legal subject matter. Such a
right is property within the meaning of the law. The ticket
brokers deny the existence of that right, and threaten to invade
it. The law affords no adequate remedy for such an infringe-
ment of such a right. The damage will necessarily and obvi-
ously be irreparable. This being true, a concrete case for in-
junctive relief is presented, and in the granting of such relief
it cannot justly or fairly be said that the courts invade the pre-
rogatives of the law-making powe? in any manner whatever.
That power has already created the identical right claimed, and
it is the duty of the courts to protect that right in the same
manner and to the same extent that they protect any other
property rights that are possessed by any citizen. The rail-
roads are not entitled to, and are not accorded, any right in
this regard that is not as fully possessed by any citizen and that
would not be protected in the same manner if such protection
waft invoked by the humblest citizen.
These considerations and conclusions result in holding that
the circuit court had ju^i!^(liction to hoar and determine the
injunction cases, and that it did not exceed its jurisdiction, and,
therefore, the preliminary rule in prohibition must be dis-
cliarged, at the costs of the plaintiff.
Iiobinson, C. J., and Brace, Burgess, and Fox, JJ., concur.
Valliant and Gantt, JJ., dissent.
Mr. Justice Valliant Dissented, and stated it as his opinion that in
the present case the trial court was in error in holding that it had
jurisdiction of the subject matter, and that when the trial court
erroneously holds that it has jurisdiction of the subject matter in
any given case and renders an interlocutory decree of injunction the
effect of which is to destroy defendant's rights beyond redress by
appeal in a case which cannot be heard by the appellate court in time
for a reversal to be of any value to the defendant, the writ of pro-
hibition should be issued. Judge Valliant also dissented on another
proposition, and stated it as his opinion that neither the trial court
nor the supreme court had jurisdiction to enjoin passenger ticket
brokers from buying and selling railroad tickets to be thereafter
issued, and that as to the tickets to be issued by the railroad com-
472 American State Reports, Vol, 101. [Missouri,
pany there was no concrete fact upon which to base a judgment, and
that as the present suit is aimed chiefly at tickets to be thereafter
issued, to determine in advance that the buying and selling of such
tickets would be illegal and a contempt of court is to establish a
rule of conduct not yet arisen, the effect of which is to destroy the
business of the ticket broker, and to declare as to him any recital
of fact printed on the tickets to be res judicata.
In this connection and in relation to the ticket brokerage business,
it was said: "The law-making power of this state has not declared
this business unlawful and the judiciary has no authority to do so,
yet the effect of these injunctions is to drive these men out of busi-
ness, and that is the purpose avowed in the arguments of the learned
counsel for the railroad companies. It is for the legislature to de-
clare the public policy of our law, and for the courts to apply the
law to particular acts after they are committed, or acts threatening
some property right when in existence. It is true these injunctions
prohibited the buying and selling of only such tickets as carry on their
face certain recitals, but there is nothing to prevent the railroad com-
panies printing those recitals on the face of all tickets, and having
all of them signed by a purported purchaser, and whether the re-
citals are true or the signature bona fide are questions on which the
broker, according to the terms of these injunctions, when arraigned
on a charge of contempt, will have no right to be heard. Any fact
so appearing on the face of the ticket is, as to him, res adjudicata.
The railroad company is clothed with the power of stating the neces-
sary facts on the face of the ticket, and any fact when so stated
becomes, by relation to the judgment, res adjudicata, and is past
disputing.
"As between the plaintiffs and the defendants in those suits, if
the court had jurisdiction to decree as it has decreed, the decree
settles the right of the parties touching the subject adjudged, and the
plaintiffs cannot, by any subsequent legislation, be deprived of their
vested rights in the matters covered by that decree. If the plain-
tiffs are entitled to what those decrees essay to adjudge to them,
then as to the defendants in those suits, no power in the land can
deprive them of it. Those decrees cover tickets to be hereafter is-
sued as well as tickets already issued and are aimed chiefly at tickets
hereafter to be issued. No one will doubt but that the general
assembly has the power to enact that all railroad tickets issued in
this state shall be transferable or assignable, yet if the court had
jurisdiction to enter the decrees that it did enter in these cases (and
so far as the question of jurisdiction is concerned there is no differ-
ence between an interlocutory decree and a final decree; jurisdiction
to grant a temporary injunction is jurisdiction to make it perpetual),
then if the general assembly should to-morrow enact a law to the
effect that all railroad tickets hereafter issued in this state should
be transferable, the act would be invalid in its application to the
Dec. 1903.] ScHUBACH v. McDonald. 473
acts of the parties to those suits relating to tickets covered by those
decrees, because if the decrees are valid they confer on those plain-
tiffs as against those defendants vested rights, and subsequent legis-
lation cannot destroy vested rights. But I apprehend that if any
such condition should arise it would be held that the fault was with
the court which had gone beyond its jurisdiction and attempted to
reach into the future to adjudicate upon cases before they had arisen.
Suppose our general assembly should conclude that the business of
railroad ticket brokers was detrimental to the well-being of the state
and pass an act saying that anyone who should hereafter buy or
sell a railroad ticket that recited on its face that it had been is-
sued by the company at a reduced rate and for that reason was non-
transferable, should be deemed guilty of a misdemeanor and upon
conviction be punished by fine and imprisonment, would anyone say
that the general assembly in passing that act was usurping the powers
of government intrusted to the judiciary! Whatever else might be
said, in questioning the validity of the act, no one would say that
it was not legislative in its character, no one would claim for it that
it was a judicial act. Yet that is exactly the kind of act effected
by these injunctions. Our attention has been called to a bill now
pending in the municipal assembly which in its essence copies the
very words of these injunctions and proposes to enact them into a
law. Are these railroad companies appealing to the World's Fair
sentiment in the municipal assembly to induce its members to usurp
judicial powers, or has the circuit court assumed legislative func-
tions? The act in its nature is either legislative or judicial, it be-
longs either to the one department of the government or to the
other; it cannot be exercised by both. In the language of the su-
preme court of Vermont, 'No power can properly be a legislative
and properly be a judicial power at the same time; and as to mixed
powers, the separation of the departments in the manner prescribed
by the constitution precludes the possibility of their existence':
Bates v. Kimball, 2 Chip. 87."
Mr. Justice Gantt concurred in the dissenting opinion of Mr. Jus-
tice Valliant.
The Jie</iil(tilon of the f^riJe of Pcisseiifjcr Tickets is discussed in the
monographic note to Jannin v. State, 96 Am. St. Rep. 828-838. An
examination of this note will disclose that many authorities hold
that it is competent for the legislature to prohibit the sale of tickets
1 y brokers, unless they are authorized by the carrier to make the
sale.
474 Ameuican State Keports, Vol. lUl. [Missouri,
STATE V. DREW.
[179 Mo. 315, 78 S. W. 594.]
STOLEN PROPERTY — Recent Possession of — Presumption of
Guilt. — To raise a presumption of guilt from the possession of re-
cently stolen property it is necessary that it be found in the exclu-
sive possession of the prisoner. He can only be required to account
for the possession of things which he actually and knowingly pos-
sessed, (p. 477.)
STOLEN PROPERTY — Recent Possession of— Presumption of
Guilt. — 'The finding of recently stolen articles on the premises of a
man of a family, without showing his actual, conscious possession
thereof, discloses only a prima facie constructive possession, and is
not such a possession as will justify a presumption of guilt by reason
thereof, (pp. 479, 480.)
STOLEN PROPERTY as Evidence of Crime. — If in a prose-
cution for larceny there is no evidence of a conspiracy between
the accused and another to commit the crime, articles taken from
such other's house under a search-warrant are not admissible in evi-
dence, (p. 480.)
TRIAL. — Instructions assuming that an accused has made cer-
tain statements adverse to his interest are erroneous and should be
limited to the statements proved on the trial, (p. 480.)
J. C. Wallace, for the appellant.
E. C. Crow, attorney general, and S. B. JclTrics, assistant
attorney general, for the state.
"A« GANTT, P. J. The defendant and one Frank Gamble
were charged in an infonnation filed by the prosecuting attor-
ney of Chariton county witli burglary and larceny of the store
of Joseph Miles in the town of Dalton in said county on the
19th of ^lay, 1901. A severance was granted and the defend-
ant duly arraigned at the September term, 1901. At the Febru-
ary term, 1903, defendant was put upon his second trial for
this offense, and convicted of both the burglary and larceny
and sentenced to the penitentiary for a term of five years. His
motions for new trial and in arrest of judgment were overruled
and exceptions duly saved and an appeal granted to this court.
The evidence on which this conviction rests is substantially
as follows: ^Ir. ^Vfiles, the prosecuting witness, had a general
merclumdise store in the town of Dalton. Chariton •'**'' county,
on Sunday, the 19th of :\ray, 1901. When he left the store
Saturday night the doors were locked and fastened, but the
windows had no fastenings. On ^Mondav morning when Mr.
Miles returned to his store, he found a big light in the front
Feb. 1904.] State v. Drew. 475
door broken and a lot of empty shoe boxes on the floor and a
lot of drygoods gone. He testified he missed some shoes,
worsted goods, tobacco and some meat. The shoes were
branded "V. C." on the box and the shoes. The worsted dress
goods were of two colors, brown and of a greenish color. Some
percales, red and white striped, were also missing. The goods
taken were worth between fifty dollars and one hundred dol-
lars. A piece of percale was shown the witness and he testi-
fied he "thought" that was taken that night, but on objection
this answer was excluded. Other drygoods were exhibited to
the witness, but counsel for defendant objected to the iden-
tification of these unless the state first established that these
were found at the house of defendant. The objection was
overruled and defendant excepted and Mr. Miles answered they
came out of his store and were his goods. Some shoes were
also shown the witness and he said they looked like his and
had the same marks and brands. He testified he got all of
the foregoing goods, except the one remnant of percale, out of
the house of Gamble. Thereupon defendant by his counsel
moved the court to strike out all of the evidence as to the
goods obtained from Gamble's house, which motion the court
overruled and defendant duly excepted. He testified he got
these goods under a search-warrant from the houses of Gamble
and defendant some two or three weeks after the burglary was
committed. He further testified that defendant said he, Miles,
would have to show where defendant got the goods found at
his house ; that they had got it from Mrs. Cook, who also had
a store in the town. On cross-examination Mr. Miles admitted
he had testified on a former trial of this case that his store
was burglarized on Saturday night instead of Sunday night as
he now ^^^ stated. That he could not identify the one piece
of percale found in defendant's house by any mark, but onlv
by its general appearance. He would not positivelv say tliis
was a piece of his goods. That he could not state that the
goods in his store were exactly like this piece. It was simply
a piece of red and white percale he liad in his store at that time.
When he went to defendant Drew's house he also found a lit-
tle piece of white goods there. He did not take tliat at the
time, neither did he take this piece of percale. He did not
take the percale because defendant said he got it from 'Mv>.
Cook and he thought he would see her liefore taking it. De-
fendant said he got the white goods also from Mrs. Cook. This
piece of white goods and this piece of percale was all he
476 Amekican State Reports, Vol. 101. [Missouri,
found in defendant's house. He did not claim the white goods,
which the evidence of Mrs. Cook and defendant's wife con-
clusively established came from Mrs. Cook's store. Mrs. Cook
testified she sold defendant's wife the white goods on Saturday
before the burglary, but did not sell defendant or his wife
the percale; that she never had a piece like it in her store.
Mr. Veatch, the sheriff, testified he served the search-warrant
and got the piece of percale at defendant's house. The trunk
was locked and defendant's daughter brought her mother the
key to the trunk and he found this piece of percale in that
trunk. Defendant was not present at the time. Witness says
that there was a piece of white goods and the percale in his
liands when defendant and his wife said they got the goods
from Mrs. Cook. Does not think they said either piece par-
ticularly. After Mrs. Cook said they did not get the percale
from her an officer went back to defendant's house and got it.
Until then Mr. Miles was uncertain that it was his.
On the part of defendant the evidence tended to prove that
^Irs. Gamble used Mrs. Drew's sewing-machine and, as a recog-
riition of their kindness, gave the piece of percale to Julia
Drew, the fifteen year old ^^^ daughter of defendant, and that
it with the white goods purchased from Mrs. Cook was in an
unlocked bureau drawer at defenda-nt's house when the ofTicer
found and afterward took it. Mrs. Gamble gave tliis piece
io Wiss Drew on Saturday before the defendant was arrested
about the middle of June, 1901. There was also evidence that
oMrs. Gamble's father bought the goods in Kansas City and
gave it to his daughter. Various errors are assigned for re-
versal of the judgment.
Among other instructions, the court gave tbe following: "2.
The court instructs the jury that if you believe from the evi-
dence beyond a reasonable doubt that on or about the nine-
teenth day of May, A. D, 1901, at the county of Chariton in
the state of ^lissouri, some one did feloniously and burglari-
ously break into and enter the storehouse and building of
Joseph Miles and steal therefrom goods and chattels mentioned
in the information or any of said goods and chattels, and that
scon thereafter said goods and chattels or any part thereof
were found in the exclusive possession of Hamp Drew, then
and in that event the law presumes that the defendant is guilty
of both burglary and the larceny, and unless the defendant has
accounted for the possession of said goods, to your reasonable
satisfaction, or rebutted the presumption arising from the re-
Feb. 1904.] State v. Drew. 4.77
cent possession of said goods, as defined in these instructions,
you should find him guilty as charged in the information; but
the court instructs you that the defendant may rebut the pre-
sumption of guilt arising from recent possession of stolen prop-
erty or explain his possession by either direct evidence or at-
tending circumstances or the character or habits of himself by
some other mode equally satisfactory as to the innocence of the
accused."
1. This instruction is challens^ed because counsel for defend-
ant insists that the testimony does not show an actual posses-
sion by defendant of any of the stolen ^^^ goods, but a mere
constructive possession by reason of the fact that one piece of
percale which the prosecuting witness thought was his because
it resembled that which he had in his store was found in a
trunk in the house of defendant, which his daughter testified
was given to her only a day prior to the burglary by Mrs. Gam-
ble.
This court, in State v. Castor, 93 Mo. 242, 5 S. W. 90G,
adopted Greenleaf's statement of the law on this point (3
Greenleaf on Evidence, sections 32 and 33), wherein he says:
"But to raise the presumption of guilt from tlio possession of
the fruits of the crime by the prisoner, it is necessary tliat
they be found in his exclusive possession. A constructive pos-
session, like constructive notice or knowledge, though sufficient
to create a civil liability, is not sufficient to hold the party re-
sponsible to a criminal charge. He can only be required to
account for tlie possession of things which he actually and
knowingly possessed ; as, for example, where they are found
upon his person, or in his private apartment, or in a place
of which he keeps the key."
In Castor's case the evidence showed the stolen goods wore
found in his trunk, but it was shown that his ein))loyer had
access to the trunk; that he had lent the key to another to get
some blacking and a brush and the key remained in the hands
of the borrower for four days. And it also appeared that the
trunk was often left unlocked in the house of the owner of tlie
stolen goods and the trunk could be unlocked by a cupboard
key and could have been unlocked by anotlicr familiar with
the locus in quo. In these circumstances it was ruled that
defendant's possession was not exclusive. That decision has
been approved by this court: State v. Baker, 144 Mo. 329, 4G
S. W. 194.
478 American State EErouTS^ A'ol. 101, [Missouri,
In State v. Belcher, 136 Mo. 137, 37 S. W. 800, it was said:
"The recent possession of stolen property raises a presumption
of guilt, but what constitutes recent possession which will jus-
tify this instruction is a preliminary question for the court.
It is the settled law of this court ^^^ that to raise this pre-
sumption the stolen goods must be found in the exclusive pos-
session of the prisoner": State v. Castor, 93 :Mo. 212, 5 S. W.
906; State v. Warford, 106 Mo. 55, 27 Am. St. Eep. 322, 16
S. W. 886; State v. Scott, 109 Mo. 226, 19 S. W. 89; State
V. Owsley, 111 Mo. 450, 20 S. W. 194.
In Belcher's case, as in this, the larger part of the goods
were found in the possession of another, one Edwards, and
the remainder found in the home of the defendant's mother,
and there was no evidence to indicate that defendant had a.ny
other possession than that shared by the family in common
save and except as to a pair of overalls and a pair of shoes,
and it was a question Avhether these were a part of the stolen
goods, and it was not held to be exclusive or recent enough to
justify this instruction.
In "state v. Warford, 106 Mo. 63, 27 Am. St. Rep. 322. 16
S. W. 886, it was said by Judge ]\racFarlane : "It would be
pushing the rule too far to require of one accused of a crime
an explanation of his posi^cssion of the stolen propoi'ty, w]:en
such possession could also, with equal right, be attributed lo
another."
in tbis case tbcro was no evidence tliat dercndant know of
tlie ])oss('ssi()n bv bis dauglitor or wife of tbis ])i('ce of dress
goods. Tlie fact that it was in the liouse of which he was the
lu'ad was at most n.ci-cly a constructive possession, especially
\\li('n the (liaracUT of tbe goods, an article of female attire of
whose existence tbe fatlier miglit well l)e and generally is ig-
norant until made up, is taken into consicU'ratioji. Tbe father
was not at liome when tlie search was made and tlie ]iiece of
f;ood> was found in tbe trunk or tbe drawer of a bureau. Tliere
AN as also indcpi'ndent evidence that tbis piece of gooils was
in d('r('iid;int"s bouse prior to tbe burglary. It is evident tliat
tbe state's ca<i) rested upon tbe fact that tbis one piece of per-
ciile w;;s found in defendant's bouse some tbree weeks after
the biirglarv of aides' store. Although there was a large
•'-- amount of dress goods, tobacco, meat, shoes, etc., stolen
and defendanfs premises were carefully searched by tbe oflicer
I'.nder tbe seareb-warrant, no ])art of tbe stolen goods wore
found there except tbis j>ie.f of percale, if it be conceded that
Feb. 1904.] State v. Drew. 479
it was a part of the stolen goods, and no other evidence con-
necting him with the crime. While it is true Mr. Miles tes-
tifies that defendant said they got the percale from Mrs. Cook,
the officer who was present and who testified for the state says
he had both the white goods and the percale in his hands when
defendant said they got the goods from Mrs. Cook and did
not particularize which piece. It was shown that as to the
white goods this statement was true.
One proposition, then, is presented : Was the possession of the
wife or daughter in the circumstances detailed such an exclu-
sive possession in defendant as justified this instruction? Was
it anything more than that constructive possession which every
head of a family is presumed to have of property in his house
or on his premises?
In Regina v. Pratt, 4 Fost. & F. 315, Chief Baron Tollock,
whose learning and immense experience give great weight to
his judgments, laid it down that the mere fact of the goods
being on the prisoner's premises, which might be without his
knowledge or assent, does not prove possession, much less re-
ceiving by him, for another might have put the goods on the
premises without his knowledge, and he directed the jury to
acquit.
So in State v. Owsley, 111 Mo. 450, 20 S. W. 194, in which
two stolen revolvers were found in the possession of Mrs.
Owsley, the wife of the defendant, but he was not at tliat time
living with her, it was ruled that the possession of the wife
could not be regarded as the exclusive possession of the hus-
band. Wbile the possession of the wife was the possession of
the husband at common law for the purposes of civil liability,
that law al?o recognized and held tbe wife as a criminal agent
for crimes "^^ committed by herself not in the presence of
her liusband, and even in his presence, when slie alone was tlie
active and inciting partv to tbe offense: State v. Isla Foo, 110
Mo. 7. 33 Am. St. Rep. "414, 19 S. W. 222.
In our opinion, tbe more fact of finding stolon nrticlos on
the promises of a man of a family without shoAving bis actual
conscious possession thereof discloses only a prima facio con-
structive possession and is not such a possession as will justify
a presumption of guilt by reason thereof. It is witbin the
common experience that many honest and worthy men have
dishonest children and servants, and to indulge the presump-
tion that because goods are found on their promises which turn
out to have been stolen, without going further and showing
480 American State Reports, Yol. 101. [Missouri,
an actual conscious and exclusive possession of such goods in
the head of the family, would result oftentimes in punishing
the innocent for the guilty.
There is no occasion for pushing the presumption to any such
length. Kept within its proper limitations it is a salutary
principle and reasonable, but given a latitudinous constructive
interpretation it is unreasonable, and would work grave in-
justice: People V. Hurley, 60 Cal. 74, 44 Am. Eep. 55; Cowen
and Hill's Notes to Phillips on Evidence, 530; Wharton's
Criminal Evidence, sec. 758, and cases cited; Turbeville v.
State, 42 Ind. 495; Roscoe's Criminal Evidence, 18; Field v.
State, 24 Tex. App. 422, 6 S. W. 200; Burrill on Circumstantial
Evidence, 450; Lehman v. State, 18 Tex. App. 174, 51 Am.
Eep. 298.
In our opinion tliere was no such actual, conscious, exclusive
possession of this piece of percale by the defendant as would
justify tlie giving of instruction No. 2 on behalf of the state.
2. As there was a total failure to show any confederacy or
conspiracy between the defendant and Gamble, the court erred
in admitting in evidence the goods taken under the search-
warrant from Gamble's liouse. It could not fail to have a preju-
dicial oIToet on defendant. In the absence of evidence tending to
prove a conspiracy, *^^* this evidence threw no light on the
guilt or innocence of defendant, but was irrelevant and incom-
petent. As the case may be retried it may be remarked that if
the jury sh.ould find that ]\Irs. Gamble gave defendant's daugh-
ter the piece of percale three weeks after the burglary, and that
prior to such gift defendant had no possession of the jiorcalc,
such a second-hand possession by the daughter would not cnMle
a presumption of guilt: State v. Warlord. lOo ^lo. 5."), 27 Am.
St. Rep. 322, 16 S. W. 880; State v. Scott, 109 Mo. 2-2r>. 19
S. W. 89. Having explained his possession, it devolved upon
the state to show his explanation was false or improbable.
3. The fifth instruction is open to the criticism of defendant
that it assumes that defendant had made statements adverse
to his interest and that it should have been limited to conversa-
tions proved on the trial. These defects can be readily rem-
edied, however, if it shall be deemed advisable to further pros-
ecute the case.
For the errors noted, the judgment is reversed and the cause
remanded for a new trial in accordance with the views herein
expressed.
All concur.
Feb. 1904.] State v. Drew. 481
POSSESSION OF STOLEN PBOPEETY AS EVIDENCE OF GUILT.
Introductory, 481.
I. Application of the Doctrine.
a. To Larceny, 482.
b. To Burglary, 482.
c. To Eobbery, 484.
d. To Receiving Stolen Property, 484.
n. Effect of Possession of Stolen Property.
a. In General, 485.
b. As a Presumption of Guilt, 485.
c. As Conclusive Evidence of Guilt, 491.
d. As Prima Facie Evidence of Guilt, 492.
e. As Sufficient to Warrant, Justify or Sustain Conviction,
493.
f. As an Inference of GuUt, 495.
g. As a Mere Circimistance Tending to Show Guilt, 497.
m. Nature and Conclusiveness of Presumption.
a. Nature of the Presumption Raised, 499.
b. Effect on Burden of Proof, 502.
c. Effect of Good Reputation on Presumption, 504.
IV. What Constitutes Possession.
a. In General, 505.
b. Necessity for Identification of the Stolen Property, 506.
c. What Must be Shown Where the Stolen Property is Money,
506.
d. Necessity for Possession to be Recent, 510.
e. Necessity for Possession to be Exclusive.
1. In General, 513.
2. Effect of Joint Possession, 513.
3. Effect of Public Access to Place of Deposit, 514.
4. Effect of Access by Family of Accused, 516.
V. Effect of Possession of Part of Property or Possession by an
Associate.
a. Possession of Only Part of the Stolen Property, 518.
b. Possession by Codefendant or an Associate, 520.
VI. Nature and Effect of Explanation.
a. What Amoimts to an Explanation, 520.
b. Effect of Explanation Showing Wrongful or Dishonest
Possession, 522.
c. Effect of Explanation Raising Reasonable Doubt, 522.
d. Effect of False Explanation, 523.
VII. Province of Court and Jury, 523.
Introducbory.
The possession of stolen property as evidcncingr the guilt of the
possessor of the crime committed when the property was stolen, is
necessarily, from the very nature of such crimes, espocially of lar-
ceny and burglary, a kind of evidence which is very essential in fix-
ing the guilt of the person committing the crime. Hence the deci-
sions in which the subject has been passed upon are quite numerous.
They, however, are very discordant, and in many instances are in-
capable of being reconciled. Much of the confusion in regard to the
law on this subject has arisen from the loose expressions used by the
Am. St. Rep. Vol. 101—31
482 American State Reports, Vol. 101. [Missouri,
courts in describing the probative effect arising from the fact of the
possession of the stolen property. The earlier authorities were dis-
cussed in the monographic note to Hunt v. Commonwealth. 70 Am.
Dec. 447.
I. Application of the Doctrine.
a. To Larceny. — The rules formulated by the courts as to the
probative force of evidence showing possession of stolen property by
the accused naturally apply to cases in which the c^ime of larceny
is charged: State v. Armstrong, 170 Mo. 406, 70 S. W. 874; State v.
Brady, 121 Iowa, 561, 97 N. W. 62.
b. To Burglary. — The doctrine is also applied to burglary cases:
State V. Warford, 106 Mo. 55, 27 Am. St. Eep. 322, 16 S. W. 886. The
weight of authority, however, seems to be that it is necessary to
show by some other evidence that there was such a breaking and
entry of the building whence the property was stolen as would ful-
fill the requirements regarding that element of the crime of burglary,
and that the goods found in the possession of the accused were stolen
from the house on that particular OL'casion: King v. State, 99 Ga.
686, 59 Am. St. Eep. 251, 26 S. E. 480; Brooks v. State, 96 Ga. 353,
23 S. E. 413; State v. Williams, 120 Iowa, 36, 94 N. W. 255; Strick-
land V. State (Tex. Cr.), 78 S. W. 689. See, also. Fuller v. State, 48
Ala. 273; People v. Bielfus, 59 Mich. 576, 26 N. W. 771; Metz v.
State, 46 Neb. 547, 65 N. W. 190. The rule and its application were
shown in Lester v. State, 106 Ga. 371, 32 S. E. 335, wherein it was
said: "To maintain a conviction for the offense of burglary, it is
absolutely essential that proof of the breaking and entering be made.
It is not at all necessary for the character of evidence which estab-
lishes the corpus delicti to be positive and direct; but it is necessary
that the corpus delicti be shown by evidence which is legal, admis-
sible, and which establishes the fact beyond a reasonable doubt. If
one be found in the recent possession of goods shown to have been
stolen from the house at the time of the breaking and entering, such
possession is sufficient to connect the person in possession with the
perpetration of the offense. But it is not of itself conclusive: Jones
V. State, 105 Ga. 649, 31 S. E. 574. In this case there were no ex-
ternal or internal evidences that the house was broken. The theory
of the state was that it was entered by the unlocking of the door by
some person unauthorized, but there was no proof, direct or circum-
stantial, that such was the case, other than the fact that the prop-
erty was stolen from the house and apparently no other entry could
have been made than by means of unl' eking the door. Th:; loss of
the property seems to have been relied on as a proof of the entry,
and the possession of the defendant to be taken as a fact sufficient
to authorize his conviction of the breaking and entering. This is not
sufficient. As it is necessary, when the recent possession of goods
stolen from the house at the tinio of a burglarious entry is relied oa
to connect the defendant with such entry, the breaking and entering
Feb. 1904.] State v. Drew. 483
must be clearly shown before the circumstances of possession can in
any way connect the defendant with the offense charged."
In Koberson v. State, 40 Fla. 509, 24 South. 474, the court said:
"But unless the goods were obtained by a breaking and entrj — in
other words, unless the breaking and entry and the larceny were
parts of the same transaction, or if not parts of the same transac-
tion, unless the breaking and entry and the larceny were committed
by the same person — the exclusive possession of property recently
stolen does not warrant a pregumpti:)n that the possessor is guilty
of the breaking and entry, although it does warrant a presumption
that he is guilty of larceny": Citing Knickerbocker v. People, 43
N. Y. 117; Commonwealth v. McGorty, 114 Mass. 299; Brooks v.
State, 96 Ga. 353, 23 S. E. 413; S^ato v. Elvers, 68 Iowa, 611, 27 N.
W. 781; Smith v. People, 115 111. 17, 3 N. E. 733; People v. Wood, 93
Mich. 620, 58 N. W. 638.
The rule just stated was also approved in People v. Hannon, 85
Cal. 374, 24 Pac. 706; State v. Brady, 121 I ,wa, 567, 97 N. W. 62;
State v. Powell, 61 Kan. 81, 58 Pac. 968; Metz v. State, 46 Neb. 547,
65 N. W. 190; Eyan v. State, 83 Wis. 486, 53 N. W. 83G.
As we will see later on in this note, there is no great discord
among the authorities as to the ir.ere admissibility of evidence of
possession of stolen goods as a mere circumstance, b it there is a
difference of opinion among the courts as to the effect or weight of
such evidence. In State v. Brady, 121 Iowa, 565, 97 N. W. 62, it
was said: "As to the effect to be given in prosecutions for burglary
to proof of possession of goods stolen in connectian with the break-
ing and entering, the authorities are not entirely in harmony. There
are decisions holding without qualification that the fact of possession
of property recently stolen under such circumstances has no ten-
dency to prove the possessor's guilt of burglary: People v. Gordon,
40 Mich. 716. On the other hand, cases may be found to the effect
that such fact alone creates a sufficient presumption of guilt to
justify a conviction: Knickerbocker v. People, 43 N. Y. 177. Our
own cases have gone to neither extreme, and are, we think, in har-
mony with the weight of authority. As laid down in State v. Eivers,
68 Iowa, 616, 27 N. W. 781, the rule approved by this court is that:
' The possession of property which has been stolen from a building
which had been broken and entered is not alone prima facie evidence
that the one having it is guilty of the burglary. Such possession
unexplained does raise a 'presumption that the party is guilty of
larceny, but it does not follow that both crimes wore committe 1 by
the same party. The one who committed the larceny may have found
the building open after the burt^lary was committed, and may havj
entered and stolen the goods without having been concerned in the
breaking. It is obvious, therefore, that the mere possession of the
stolen goods does not have the same tendency to connect him with
the burglary which it does with the larceny.' "
484 American State Reports, Vol. 101. [Missouri,
In People v. Boxer, 137 Cal. 562, 70 Pac. 671, it was held that the
recent unexplained possession of stolen propsrty, the fruits of a
burglary, may be considered as a circumstance tending to show g'lilt
when considered witli other suspicious circumstances, but not when
the stolen property came into their possession after the commission
of the burglary by other parties. In Mangham v. State, 87 Ga. 549,
13 S. E. 558, it was held that the recent possession of stolen prop-
erty from a burglarized house, not satisfactorily explained, may b3
sufficient to establish the guilt of the defendant where the fact of
the burglary is established and the jury believe from all the evi-
dence that the defendant is guilty. And in State v. Hullen, 133 N.
C. 656, 45 S. E. 513, it was held that recent possession of stolen good^
was a circumstance tending to show that the possessor broke and
entered the house from which the stolen goods were burglarized.
c. To Robbery. — Evidence showing the possession of goods re-
cently stolen under circumstances making the larceny constitute th'?
crime of robbery was admitted in Moses v. State, 88 Ala. 78, 15
Am. St. Eep. 21, 7 South. 101; State v. Wyrtt, 124 Mo. 537, 27 S.
W. 1096; State v. Balch, 136 Mo. 103, 37 S. W. 808. Althoush tlic?
cases in which the doctrine relating to the possession of stolen goods
with reference to the crime of robbery are not very numerous, still
the practice of receiving such testimony is quite general. From the
very nature of the crime of robbery, such possession ought not to bo
of controlling weight unless the essential elements of the crime of
robbery are proved and there are other circumstances connecting the
possessor of the stolen goods wnth the crime. It sceii:s that the same
principles which a court would aiiply to evidence of such pjssession
in a burglary case ought to apply in a robbery case.
d. To Receiving Stolen Property. — Evidence of possession of stolen
goods is naturally admissible in prosecutions for receiving stolen
property. In State v. Guild, 149 Mo. 370, 73 Am. St. Rp 395, 5'J
S. W. 909, it was held that the recent possession of stolen pro])erty
is evidence either that the person in possession stole the property
or that he received it knowing it to be stolen, according to the cir-
cumstances, and, unexplained, is sufiicient to warrant a conviction
for receiving stolen property. The same holding was made in Gold-
stein V. People, 82 N. Y. 231; People v. Weldon, 111 N. Y. 5ii9. li»
S. E. 279. In Cooper v. State, 29 Tex. App. 8, 25 Am. St. Rep. 712,
13 S. W. 1011, it was held that such possession was a mere circum-
stance to be consiilcred by the jury in connection with other evi-
dence in the case. In a subsequent case in Texas, that of Castleberry
V. State, :',.-> Tex. Cr. Rep. 3S2, 60 Am. St. Rep. 53, 33 S. W. 875, it was
held that the mere fact, standing alone, that an accrsed person re-
ceived stolen property was not sufficient proof ti establish that he
knew that the property was stolen when he received it. In Regina
V. Matthews, 1 Den. C. C. 610, the court went to the extent of
saying, in a prosecution for receiving stolen goods: "lie bought the
Feb. 1904.] State v. Drew. 485
goods of a thief, and they are found in his house. Prima facie, if
stolen goods are found in a man's house, he, not being the thief, is
a receiver." The question was also discussed in Eogina v. Lang-
mead, 1 Leigh & C. 427. ^
n. Effect of Possession of Stolen Property,
a. In General. — It is on the question what effect the possession
of stolen property has upon the guilt or innocence of the possessor
that the courts differ in their statements of what the law is in that
respect. Many of the courts, perhaps, use loose expressions in their
statements of the probative force of such evidence. In our discus-
sion of this branch of the subject we shall arrange the cases accord-
ing to the general expressions which seemed to indicate the proba-
tive force which it was contended that the evidence afforded. It
seems to us that the correct rule was announced by Justice Bonnifield,
in State v. Mandich, 24 Nev. 340, 54 Pae. 51G, wherein he said: "In
prosecutions for larceny the fact that the stolen property is, recently
after the theft, found in the possession of the defendant, can always
be given in evidence against him. The strength of the presumption
which it raises against the accused depends upon all the circum-
stances surrounding the case, and is for the jury to determine." In
State V. Gillespie, 62 Kan. 469, 84 Am. St. Eep. 411, 63 Pae. 742,
after a general discussion of the subject, the court remarked: "Nor
do we think that, as a matter of law, the more possession of goods
recently stolen on the occasion of a burglary may be sufficient, even
in connection with other criminating circumstances, to raise a pre-
sumption of guilt of the burglary. The difference in strength and
cogency between evidence tending to show guilt and evidence suffi-
cient to raise a presumption of guilt is not great enough, if it exists
at all, to justify the drawing of distinctions between the rules appli-
cable to the two states of moral conviction they generate. As just
remarked, evidence tending to show guilt may tend so strongly to
show it as to raise a presumption of guilt, and a presumption of guilt,
if not rebutted, is sufficient to convict of crime. It is the unex-
plained possession of recently stolen goods that tends to show guilt
or raises a presumption of guilt of the larceny, and it is the unex-
plained possession of goods recently stolen on the occasion of a burg-
lary that tends to show guilt or raises a presumption of guilt of the
burglary."
b. As a Presumption of Guilt.— The courts which state the rule
to be that unexplained possession of recently stolen goods creates a
presumption that the possessor is guilty of the larceny or of the burg-
lary, if the larceny of the goods is shown to have taken place at the
time when the house was burglarized, do not always sliow whether
a presumption of law or fact is meant, but leave it to be inferred
from the language used by the court. In Johnson v. State, 148 Ind.
524, 47 N. E. 926, it was said: "When it is proved that property
486
American State Reports, Yol. 101. [Mispouri,
has been stolen, and the same property, recently after the larceny,
is found in the exclusive possession of another, the law imposes upon
such person the burden of accounting for his possession, and of
showing that |uch possession was innocently acquired; and if he fails
to so satisfactorily account for such possession, or gives a false ac-
count, the presumption arises that he is the thief." In Atzroth v.
State, 10 Fla. 210, it was said: "It is a well-settled principle that
if a man be found in possession of stolen property, the law presumes
him to be the thief, in the absence of satisfactory explanation."
And in Territory v. Casio, 1 Ariz. 485, 2 Pac. 755, the court, after
adverting to People v. Chambers, 18 Cal. 383, and People v. Brown,
48 Cal. 253, wherein it was said that recent possession was a mere
circumstance, admitted that the same rule ought not to apply to
small articles which readily pass from hand to hand as to property
which cannot be so easily disposed of. It then remarked that: "It has
been generally understood that the prisoner's exclusive and unex-
plained possession of stolen property recently after the theft raises
the presumption that he is the thief, and that this presumption takod
the burden of proof from the prosecution and lays it upon the pris-
oner": Citing Roscoe's Criminal Evidence, 18; 2 Russell on Crimes,
337; Knickerbocker v. People, 43 N. Y. 177; People v. Walker, 38
]Mioh. 15G; State v. Brady, 27 Iowa, 126; State v. Creson, 38 Mo.
372; State v. Turner, 05 X. C. 592; Waters v. People, 104 111. 544.
So, also, in State v. Graves, 72 X. C. 482, it was said: " 'When goods
i'.re stolen, one found in possession so soon thereafter that he could
T.ot have reasonably got the possession unless he had stolen them
himself, the law presumes he w:is the thi'^f. ' This is simply a de-
duction of common sense, and when ths' fact is so plain that ther>
can 1)6 no mistake about it, our courts, following the ])ra(ti<c in
England, where the judge is allowiMl to express his opinion as to the
weight of the evidence, liave ado]it('(l it as a rule of law, which the
judge is at lil)crty to act on, notwithstanding the statute which for-
bids a ju'ijic from intimating an opinion as to the weight of the evi-
dence. r>ut this rule, like that of falsuni in uno, falsum in omnilms,
and the jiresumjdion of fraud, as a matter of law from certain fidu-
ciary relations (see Lea v. Pearre, 6S X. (J. 9ti), has been reduced
to vcrv narrow ])rop()rtions, and is never applicable when it is iicccs-
f-arv to resort to otlu'r evidi'iice to su]iport the conclusion; in (ifhcr
words, the fact of guilt must bo self-evident from the bare fact of
>eiiig found in possession of the stolen go;Hls, in order to justify
the juilge in layiujr it down as a jiresuinption made by the law;
otherwise it is a case dep<'nding on circumstantial evidence to bo
])assed on by the jury." In Sta.te v. Ca.rvin, 48 S. ('. 258, 26 S. E.
570, the court, though terniing the presumption a legal one, held it
to be a matter for the jury. In its discu.ssiiin of the matter the
court said: "Very clearly the law does iiiipo^e the duty upon a man.
under such circumstances, to expb'in how he came into possession of
su(di stolen gooils. If a man is innocent, it is very easy for him
Feb. 1904.J State v. Drew. 487
to tell how he became possessed of stolen property. If he declines
to do so, or is caught lying when he does explain, the law places a
very heavy responsibility upon him. Chief Justice O'Neall in the
case of State v. Kinman, 7 Eich. 497, quoted this rule, as laid down
in 2 East's Pleas of the Crown, section 93, at page 656: 'It may be
laid down generally that whenever the property of one man, which
has been taken from him without his knowledge or consent, is found
upon another it is incumbent upon that other to prove how he came
by it; otherwise the presumption is that he obtained it feloniously.'
Also it was held in State v. Bennett, 3 Brev. 514: 'This is a motion
for a new trial, on the ground of .misdirection in the judge in
stating to the jury that the lapse of time between the loss of the
articles stolen and the finding of them, being about two months, was
not sufficient to rebut the presumption of guilt arising from their
being found in defendant 's possession. A legal presumption of guilt
always arises from the possession of stolen goods.' Of course all
this must be submitted to the jury. The circuit judge in the case at
bar did no more than call to the attention of the jury this presump-
tion; he did not attempt to dictate their verdict. Let this excep-
tion be overruled." It was substantially held in State v. Jordan,
6^ Iowa, 506, 29 K W. 430, that the unexplained possession of recently
stolen property raises only a circumstance tending to show guilt,
though the court cited approvingly State v. Kelly, 57 Iowa, 647, 11
N. W. 635, where it was held that the presumption arising from
such a possession may be overcome. In the very recent case of State
V. Carr (Del.), 57 Atl. 370, the court said: "Whore recent stolen
property is found in the possession of a person, the rule of law is
that such person is presumed to be the one who stole it, unless he ac-
counts satisfactorily to the jury for his possession. Whenever a
reasonable explanation or account of the possession is satisfactorily
proven by the prisoner, it is incumbent upon the state to show that
such an account is false."
Some of the courts, however, say in general terms that such pos-
session raises no presumption of guilt. Thus in Bryant v. State, 116
Ala. 445, 23 South. 40, the court said: "The unexplained possession
of property does not raise the presumption that the property was
stolen. There must be other evidence of the corpus <lelieli; and
when this has been shown, the actual unexplained possession of the
recently stolen goods is a fact from whioh the jury may infer the
guilt of defendant. The declarations of a defendant, when found in
possession of the stolen property, explanatory of his possession are
for the considenition of the jury, together with all the other evi-
dence in determiiiing the question of his guilt or innocence."
In Griffin v. State, 86 Ga. 261. 12 S. E. 409, the court, in -liscussin-
the correctness of a charge, s-ii.i: "We are not very well s;itisfied
with this charge. If it was the n^eaning of the court to state to tiie
jury that when the crime of larceny had been proved and the goods
488 Ameeican State Eeports, Vol. 101. [Missouri,
stolen were found shortly thereafter in the possession of the prisoner,
the law would then authorize the jury to presume the prisoner guilty,
such charge would not be error. But we think this court laid down
the correct doctrine, as applicable to cases of this sort, in the case
of Falvey v. State, 85 Ga. 157, 11 S. E. 607, wherein it was held that,
where stolen goods are found in the possession of a defendant
charged with burglary, shortly after the commission of the offense,
riuch fact would authorize the jury to infer that the accused was
guilty, unless he explained the possession to their satisfaction. In
the case of Hill v. State, 63 Ga, 578, 36 Am. Kep. 120, this question
was discussed by Bleckley, J., to some extent, and it was there said:
'There is a wide difference between resting the result of a trial upon
facts which legally constitute the offense charged, and making it
turn upon other facts which are merely evidence of the constituent
facts.' Where the facts proved constitute the offense charged in
the indictment, then it would be proper for the court to instruct the
jury that if they believed such facts they should convict the de-
fendant: See Parker v. State, 34 Ga. 262; Tucker v. State, 57 Ga. 503.
The presumption in such a case is not one of law but of fact: 1
Wharton's Criminal Law, sec. 729; 3 Greenlcaf on Evidence, sec. 31;
Hall v. State, 8 Ind. 439; State v. Hodge, 50 N. II. 510; Stover v.
People, 56 N. Y. 315; Graves v. State, 12 Wis. 591; Crilley v. State,
20 Wis. 231. We think the case of Hill v. State, 63 Ga. 578, 36 Am.
Eep. 120, fully sustains the view we have stated, and is the law of
this state upon the subject." In Harper v. State, 71 Miss. 202, 13
South. 882, it was held that the law raises no presumption from re-
cent possession of stolen goods, but that it was a circumstance for
the jury. In State v. Hodge, 50 N. H. 510, the court in holding that
there is no legal presumption of guilt from the exclusive possession
of recently stolen property, after reviewing the origin of the doc-
trine very exhaustively, said: "Whether the defendant in this casa
had any possession of the watch and chain at any time, either when
they were found or before; whether liis possession, if any he had,
was recent enough, or exclusive enough, or unexplained enough, to
raise a presumption of guilt — were questions of fact for the jury.
There was some evidence to be submitted to the jury on those ques-
tions. If the jury found the defendant had the projjcrty in his pos-
session after it was stolen, that fact was evidence against him. If
they found an absence of exj)lanat'>ry evidence on his side, under
circumstances wliieh tended to show he could furnish such evidence,
that fact was additional evidence against him: TJex v. Burdett 4
Barn. & Ahl. 161, 162; 1 Phillips on Evidence, 4th Am. ed., 59S; J.
F.Stephen's Criminal Law, 303. But if those facts were fonn<], there
was no presumption of law, nor was the burden of proof shifted.
The state, in the indictment, made an afTirmation of the defen(hint's
guilt, which the defendant traversed in his jdea. The state had the
affirmative, and the burden of proof which belongs to the affirmative.
Feb. 1904.] State v. Drew. 489
The question, from the beginning to the end of the trial, wag whether
the affirmative allegation of guilt was proved by the testimony in-
troduced on both sides, and by the evidence which consists of
the nonproduction of testimony, not including the refusal of the
defendant to testify if there was such a refusal." The court
in Methard v. State, 19 Ohio St. 363, stated its view of the law in
the following clear language: "The facts that a building was bur-
glariously entered, goods stolen therefrom, and the possession by the
accused, soon thereafter, of the goods stolen, are competent evidence
to go to the jury, and in connection with other circumstances indica-
tive of guilt, such as giving a false account or refusing to give any
account, of the manner in which, or the means by which, he came
into possession of the stolen goods, they may afford a strong pre-
sumption of fact of the guilt of the accused, and warrant the jury
in finding him guilty of both the burglary and the larceny. But we
are not prepared to say that the facts of burglary, of larceny, and of
possession of the stolen goods soon thereafter by the accused, alone
raise a presumption of law that he is guilty of both the burglary
and larceny. 'Nothing can be more persuasive than the circumstance
of possession commonly is, when corroborated by other criminative
circumstances; nothing more inconclusive supposing it to stand alone.'
And 'whatever the nature of the evidence the jury must be mor-
ally convinced of the guilt of the accused, who is not to be condemned
on any artificial presumption or technical reasoning, however true
and just in the abstract' ": Citing Best on Presumptions, sec.
230. In Ingalls v. State, 48 Wis. 647, 4 N. W. 7S5, the court held
that mere possession of stolen goods shortly after the larceny
does not raise any legal presumption of guilt of the possessor,
but is merely a circumstance to be considered by the jury in connec-
tion with the other facts in the case. In Williams v. State, 60 Neb.
526, 83 N. W. 681, the discussion arose over the propriety of an in-
struction of the trial court upon the subject. The court in referringf
to the instruction said: "By it the jury are, in effect, instructed that
the possession of stolen property immediately after the theft is suffi-
cient to warrant a conviction, unless the presumption of guilt thus
arising is overcome by the attending circumstances or other evidence,
in so far as to create a reasonable doubt of the person's guilt, when
an acquittal should follow. Under the doctrine as announced and
adhered to in this state 'no presumption of guilt arises from the mere
fact of possession of stolen property, but that the inference to be
drawn from such fact is alone for the jury, when weighed in connec-
tion with all the evidence adduced on the trial.' " And continuing
the court said: "The presumption of innocence attends the accused
through every step of the trial, until the jury finds his guilt estab-
lished under the evidence beyond a reasonable doubt. The tendency
of the instruction is to shift the burden and require the accused to
overcome the presumption stated in the instruction by attending cir-
490 Americax State Reports, Vol. 101. [Missouri,
cumstances or other evidence sufficient to raise in the minds of the
jury a reasonable doubt of his guilt. The burden of proof in a crim-
inal action does not shift to the accused." In Bellamy v. State, 35
Fla. 245, 17 South. 560, it was said: "It is well settled that the
possession of goods recently stolen does not raise a presumption, as
matter of law, of the guilt of the possessor, but that the presumption
arising from such possession is purely a matter of fact to be passed
upon by the jury, and of which they are the sole judges under our
system of laws; but it is, nevertheless, true that the presumption of
guilt as a question of fact is permitted by the law to be drawn by
the jury from the unexplained possession of the recently stolen
goods. ' '
In Gabliek v. People, 40 Mich. 292, a codefendant who had pleaded
guilty to the larceny testified that he had placed the stolen articles
in the other defendant's bed, and that the other defendant was not
concerned in the larceny. Justice Cooley, in delivering the opinion
of the court, said: "This being the evidence, the court was re-
quested to instruct the jury that 'the fact of possession of stolen
property standing alone and unconnected with any other circum-
stance, affords but slight presumption of guilt, for the real criminal
may have artfully placed the property in the possession or on the
premises of an innocent person the better to conceal his own guilt.'
This request the court refused, but the jury were instructed that they
must consider all the circumstances and allow the evidence such
weight as they believed it deserved.
"We think the plaintiff in error was entitled to the instruction
requested. It is perfectly true that the jury must judge of the
proper w^eiglit of the evidence, but when evidence is laid before
tliom whicli only indirectly tends to raise an inference of gyilt, and
the inii)ortance of wliich must depend altogether upon eircu instances,
it is the right of the respondent to have the jury instructed how the
circumstances bear upon the presumption of guilt. Possession of
stolen property, if immediately subsequent to the larceny, may some-
times be ;iI:i:oHt conclusive of guUt (see People v. Walker, 38 Mich.
loG); but the presumption weakens with the time that hns elapsed,
and may scarcely arise at all if others besides the accusod hnve had
equal access with himself to the place where it is discovered. A jury
7uay or may not attach importrnce to these circumstances; but as the
law permits the inference of guilt to be drawn under some circum-
stances, and not under others, the jury should have some instructions
how to deal with these circumstances when they are placed before
them."
c. As Conclusive Evidence of Guilt.— Tn State v. Moore, 101 IMo.
316, 14: S. W. ISi;, it was hold that the possession of recently stolen
property raises a ]>resui!iption tiiat the possessor stole it, and that
this presuinptinii becon.es conclusive unless it is overcome or refuted
bv the circumstance of the taking or possession or by proof reason-
Feb. 1904.] State v. Drew. 491
ably satisfactory that such possession was innocently or honestly
acquired, where no evidence is introduced as to the defendant's good
character.
The rule, however, which is supported by the weight of authority
is that unexplained possession of recently stolen property is not con-
clusive evidence of defendant's guilt. Thus, it was said in State v.
I>enel, 63 Kan. 817, 66 Pac. 1037, that: "Neither the possession
nor unexplained possession of the fruits of a recent larceny
is, as a matter of law, conclusive evidence of the guilt of the
possessor. They are facts which may be introduced in evidence,
and it has been held by this court that if the possession is im-
mediate after the commission of the crime and unexplained,
it is prima facie evidence of guilt, but nowhere have we been
able to find an authority for saying, as matter of law, that it
is conclusive. The unexplained possession of a subject of a recent
larceny is prima facie evidence of the guilt of the accused, and is
sufficient to authorize the jury in finding a verdict of guilty; but, as
in all other circumstances, the jury is the exclusive judge of its con-
clusiveness." So, also, in Stokes v. State, 58 Miss. 677, the court,
in speaking of the effect of such possession, said: "Where unex-
plained by the party, it becomes much more potent and will of itself
justify and support a verdict of guilty. Under no circumstances,
however, does it ever attain to the dignity of a conclusive pre-
sumption of law which compels such verdict, but always remains a
presumption or inference of fact from which guilt may, by the jury,
be deduced. It is frequently spoken of, both by courts and text-
writers, as a legal presumption, or presumptio juris; and, though the
expression is inaccurate, it would not be deemed material or necessi-
tate a reversal where, notwithstanding the error of nomenclature,
the jury were still left free to exercise their own judgment as to
whether it demoustrates guilt to their satisfaction; but where they
are told that it is a conclusive presumption of law, upon which they
must or should find the accused guilty, it is fatally erroneous.
They may be told that it is a circumstance strongly indicative of
guilt, and that it will justify, support or warrant a verdict for the
state; but they must still be left to decide whether, in fact, it docs
satisfy them of guilt beyond a reasonable doubt.
"Under no circumstances does the law make possession of stolen
property conclusive proof of guilt and deduce as a presumptio juris
et de jure that the party in possession is the thief. This is a de-
duction which must be made by the jury or not as it satisfies tlieir
consciences; and however strongly the one fact may seem to follow
from the other, they cannot be told that they must inf^'r it. or that
the law infers it for them"; citing Graves v. St;ite, 12 Wis. 591;
Hull v. State, 8 Ind. 440; Perry v. State, 41 Tex. 483.
As supporting the same views, see, also, Boykin v. State, 34 Ark.
443; People v. Ah Ki, 20 Cal. 17S; Blaker v. State, 130 Ind. 203, 29
492 American State Eeports, Vol. 101. [Missouri.
N. E. 1077; Gablick v. People, 40 Mich. 292; Curtis v. State, 6 Cold.
9; Wilcox V. State, 3 Heisk. 110.
d. As Prima Facie Evidence of Guilt. — Some of the courts in
speaking of the character of evidence of unexplained possession of
recently stolen property characterize it as prima facie evidence of
the larceny or of the burglary under some circumstances: State v.
Raymond, 46 Conn. 345; Magee v. People, 139 111. 138, 28 N. E. 1077;
State V. Frahm, 73 Iowa, 355, 35 N. W. 451; State v. Conway, 56
Kan. 682, 44 Pac. 627; State v. Daly, 37 La. Ann. 576; State v. Mer-
rick, 19 Me. 398; State v. Yandle, 106 Mo. 589, 66 S. W. 532; Price
V. Commonwealth, 21 Gratt. 846. In State v. Powell, 61 Kan. 81, 58
Pac. 968, it was said that mere possession without other facts indica-
tive of guilt is not prima facie evidence of burglary. And in State
V. Herron, 64 Kan. 363, 67 Pac. 861, it was said that while unex-
plained possession of stolen property is not conclusive of guilt, it is
prima facie evidence of larceny, and may be submitted as a question
of fact from which guilt may be inferred. And in Stockman v. State,
24 Tex. App. 387, 5 Am. St. Eep. 894, 6 S. W. 298, it was said that
unexplained possession of recently stolen property is prima facie evi-
dence of theft, but the presumption is not a legal one, but is one of
fact to be found by the jury. It has also been held that while un-
explained possession of recently stolen property is prima facie evi-
dence of larceny, it is not prima facie evidence of the burglary
at which the larceny was committed: State v. Shaffer, 59 Iowa,
290, 13 N. W. 306; State v. Brundige, 118 Iowa, 92, 91 N. W.
920; Porterfield v. Commonwealth, 91 Va. 801, 22 S. E. 352.
The use of the words "prima facie" in charging the jury in such
oases was criticised in Dobson v. State, 46 Neb. 250, 64 N. W. 956.
In that case the discussion arose over the propriety of an instruction,
the court saying: "On its own motion the court gave the following
instruction, to which plaintiff in error duly excepted: '4. The jury
are instruetcd by the court possession of the stolen property, recently
after the same had been stolen, unexplained by the circumstances
attendant thereon or otherwise, constitutes prima facie evidence of
the guilt of the party so found in the possession thereof. ' ^n Robb
v. State, 35 Neb. 285, 53 N. W. 134, it was said: 'The effect to be
given to tlie fact of possession is solely for the jury to determine
wlien considered in connection with all the other facts and circnm-
stanees proven on the trial: Thompson v. People, 4 Neb. 529; Thomp-
son V. State, 0 Neb. 102; Greutzinger v. State, 31 Nel). 4G0, 48 N. W.
] IS; 2 Thompson on Trials, sec. 1894.' It is perh'ips true tliat in
the case just cited there was not a direct disapproval of the use of
the words 'prima facie' in the connection in which they occur in
the aliove copied instniction, and yet, impliedly, there was such dis-
approval in the language quoted. If tlie effect to be given the fact
of possession was solely for the jury, it was improper for the court
Feb. 1904.] State v. Dkew.
493
to instruct that such evidence should be deemed prima facie sufficient
for any purpose. Whether it was prima facie or conclusive was
solely for the jury to determine, unaided by any suggestions of the
court upon that proposition of fact."
e. As Sufficient to Warrant, Justify or Sustain Conviction.— Some
of the courts when speaking of the weight of evidence of such posses-
sion of stolen property say that it will warrant a conviction. Thus
it was held in State v. Guild, 149 Mo. 370, 73 Am, St. Rep. 395, 50
S. W. 909, that recent possession of stolen property is evidence that
the person stole it or received it knowing it to be stolen, and when
unexplained is sufficient to warrant conviction. In Huggins v. People,
135 111. 243, 25 Am. St. Rep. .357, 25 N. E. 1002, it was held that un-
explained possession of stolen property almost immediately after the
larceny raises a presumption of fact which will warrant conviction
of the burglary and the larceny. In Gravitt v. State, 114 Ga. 841,
88 Am. St. Rep. 63, 40 S. E. 1003, the court, in speaking of the sub-
ject, said: "It is true, as has been repeatedly ruled by this court,
that such possession, unexplained, or not satisfactorily explained, is
a very strong circumstance, upon which the jury will be authorized
to infer the guilt of the accused. But to charge that this circum-
stance creates a presumption of law that the one so found in posses-
sion of stolen property is guilty of the theft thereof, and is of itself
proof of guilt, is to compel the jury to do that which they are merely
permitted by law to do. The presumption is one of fact and not of
law. There is nothing in what is here laid down which conflicts with
the case of Jones v. State, 105 Ga. 650, 31 S. E. 574; for while it is
there stated as a general rule that the recent, absolute and unex-
plained possession of stolen goods raises a presumption of the guilt
of the person having such possession, the greatest length to which
the rule is carried is that it is sufficient to warrant the conviction
of the accused, and at another point in the opinion the following
language is used: 'It is true that the possession of goods stolen
at the time of the commission of a burglary is but a circumstance.
If it is recent, it is, when unexplained, a very strong circumstance
tending to show the guilt of the possessor, and it is sufficient to put
the burden of explaining the possession on the person charged with
the offense.' "
The rule as applicable to burglary cases was stated in State v.
Powell, 61 Kan. 81, 58 Pac. 968, as follows: "In State v. Shaffer, 59
Iowa, 290, 13 N. W. 306, it was said: 'The presumption of guilt which
arises, in a case of larceny, from the possession of goods recently
stolen, does not apply with equal force to the crime of burglary
with intent to steal. Such possession is evidence tending to show
that the defendant committed the burglary, but is not of itself
sufficient, even if unexplained, to warrant conviction': See, also
Davis V. People, 1 Park. Or. Rep. 447; Brooks v. State, 96 Ga. 353, 23 S.
494 American State Reports^ Vol, 101. [Missouri,
E. 413; Talaferro v. Commonwealth, 77 Va. 411; State v. Grave, 72 N.
C. 482; Metz v. State, 46 Neb. 547, 65 N. W. 190; Jackson v. State,
28 Tex. App, 143, 12 S. W. 701; Stuart v. People 42 Mich. 255, 3 N.
W. 86'3; Ryan v. State, 83 Wis. 486, 53 N. W. 836; 1 Wharton's Crim-
inal Law, sec. 813; Will's Circumstantial Evidence, 97; 5 Am, & Eng.
Ency, of Law, 2d ed., 61, and cases there cited.
"The possession of stolen goods taken on the occasion of a burg-
lary is evidence tending to establish the guilt of the possessor, and
may, when taken in connection with other criminating circumstances,
raise a presumption of guilt sufficient to warrant a conviction, but
the mere possession, without any other facts indicative of guilt, is
not prima facie evidence that such person committed a burglary,
and therefore the instruction was prejudicial error." See, also,
Langford v. People, 134 111, 444, 25 N, E. 1009, to the same effect.
Sometimes the courts say that such a possession will justify a
conviction: People v. Boxer, 137 Cal. 562, 70 Pac. 671; State v. Ray-
mond, 46 Conn. 347; People v. Wood, 99 Mich. 620, 58 N. W. 638. In
connection with the statement that such a possession will justify a
conviction, the court in Ingalls v. State, 48 Wis. 647, 4 N. W. 785,
illustrated the province of the court in such cases, in the following
language: "It is evident that mere possession of stolen goods by a
party accused ought not to be in every case, if in any, sufficient evi-
dence to justify a conviction. Take the case of a reputable citizen,
whose character is such that no suspicion of crime has attached to
him, charged with stealing a horse, and the only proof is that the
horse was found, the next morning after he was stolen, in his stable,
the stable being one which could be entered without the aid of the
accused. Clearly in such a case the presumption of innoceuce would
outweigh the inference of guilt arising out of the fact of possession.
So, if a purse of money had been stolen in a crowd, and soon after
the theft the same had been found in the pocket of a man of known
reputable character, the pocket being such that the purse could have
been put there without his knowledge, the circumstance would
hardly raise a suspicion sufficient to lean a charge of theft upon. It
is not 80 much the mere possession of the stolen goods, as it is the
nature of the possession; whether it is an open or unconcealed one,
or whether the goods are such as the person found in possosHion
thereof would probably be possessed of in a lawful way. If prop-
erty of great value should be found in the possession of one known
to be poor, so as to render it highly improbable that he had pur-
chased it, an inference of guilt would arise much stronger than if
such property were found in the possession of a man of wealth, who
would probably purchase goods of such value. It would bo impossible
to enumerate the variety of circumstances attending the mere posses-
sion of stolen goods, which would lessen or increase the inference
of guilty possession. In directing a jury, therefore, as to the weight
they should give to the possession of stolen goods or the instruments
Feb. 1904.] State v. Dkew. 495
of crime as evidences of guilt, care should be taken not to place too
much importance upon the mere possession, but their attention should
be called to the character of the possession and the circumstances
attending it. Without holding that the learned circuit judge erred
in his instructions to the jury upon this point, under the whole
evidence in the case, we are inclined to think too much stress was
laid upon the fact of the possession, and perhaps not enough upon
the circumstances under which the accused was found in the posses-
sion."
In Jackson v. State, 28 Tex. App. 370, 19 Am. St. Eep. 839, 13 S.
W. 451, it was held that the possession of stolen goods without other
evidence of guilt is not prima facie evidence of burglary, but that
where burglarized goods are immediately or soon after found in the
actual and exclusive possession of a person who gives a false ac-
count or refuses to give any account of the manner in which the
goods came into his possession, proof of such possession and guilty
conduct will sustain the inference, not only that he stole the goods,
but that he also made use of the means by which access to them was
obtained.
Other courts have also held that the single circumstance of posses-
sion of recently stolen property is not sufficient to sustain a con-
viction of either larceny or burglary: People v. Fagan, 66 Cal. 534,
6 Pac. 394; People v. Cline, 83 Cal. 374, 23 Pac. 391; Davis v. State
(Tex. Cr.), 74 S. W. 919; State v. Duncan, 7 Wash. 336, 38 Am. St.
Eep. 888, 35 Pac. 117.
f. As an Inference of Guilt. — The terms "presumption" and "in-
ference," when used with reference to the effect of evidence of the
possession of stolen property as evidencing the guilt of the possessor,
seem to be used interchangeably, and it is more than likely that they
are used by the courts as synonymous in all those cases where the
presumption which is said to arise from such possession is deemed
one of fact.
In Ayres v. State, 21 Tex. App. 399, in commenting upon the effect of
such possession, the court said: "Whilst it is true, as a legal pro-
position that unexplained possession of property recently stolen is
prima facie evidence of theft, and whilst the law would from such cir-
cumstances authorize an inference and presumption of guilt, such an
inference and presumption is not a mere legal one, but is one of fact to
be found by the jury, and the court should, in no instance, charge the
conclusiveness of such presumption or inference, but should submit
them as facts to be found by the jury, for, at most, they are but
circumstances only from which guilt is inferred and not positive
proof establishing it." In Orr v. State, 107 Ala. 39, 18 South. 142,
the court said: "The unexplained possession of property does not
raise the presumption that the property was stolen. There must be
other evidence of the corpus delicti. When this has been shown and
the stolen property, soon after the offense, is found in the possession
496 American State Reports, Vol. 101. [Missouri,
of a person who is unable to give a satisfactory explanation of his
possession, then the jury are authorized to infer his guilt. We are
aware in some courts it is held that the unexplained possession of
property recently stolen as a matter of law raises a presumption of
guilt from the circumstances, but our opinion is, the best considered
cases, and it is the safest rule, to leave it with the jury to say
whether the unexplained possession of goods recently stolen satisfies
them beyond a reasonable doubt of the guilt of the defendant." So,
also, in Gravitt v. State, 114 Ga. 841, 88 Am. St. Eep. 63, 40 S. E.
1003, it was held that recent possession of stolen property by
one accused of burglary, not satisfactorily explained, is a circum-
stance for which the jury is authorized to infer his guilt, but that
Buch possession does not create a presumption of law against him
and that it is not of itself conclusive. And in Harper v. State, 71
Miss. 202, 13 South. 882, it was said: "The law raises no presumption
from recent possession of stolen goods; such possession is a circum-
stance for the jury's consideration in determining the question of
the defendant's guilt, and in the absence of a reasonable explanation
the jury may infer guilt." So, also, in Johnson v. Territory, 5
Okla. 695, 50 Pac. 90, which was a well-considered case, the court in
discussing the effect of such possession in a burglary prosecution,
said: "In such a case testimony which tends to prove the
commission of the larceny also tends to prove the commission of the
burglary; but the evidence of unexplained possession of recently
stolen property would have no more force and weight in such a case
than in a case of larceny. In either it is but a circumstance tend-
ing to show the guilt of the defendant, if established as a fact by
the evidence beyond a reasonable doubt. The inference, also of fact,
may flow therefrom, that the recent and unexplained possession is
because the possessor stole the property. The only inference, how-
ever, to be drawn from such proof is an inference of fact, and how-
ever strong tlie circumstance may be, or however irresistible the in-
ference that may follow, no presumption, as a matter of law, flows
from such proof. The law presents against the defendant in a lar-
ceny or burglary case no presumption excepting that which it exer-
cises in all cases — that is, that every man is presumed to intend the
natural consequences of every deliberate act — and that presumption
is never carried to the extent of asserting his guilt as a matter of
law, no matter how strong the evidence may be. The law of this
territory is that 'a defendant in a criminal action is presumed to
be innocent until tlie contrary is proven.' This does not moan that
he is presumed to be innocent until one fact is proven against him
in the case; that is, that he had exclusive possession of recently
stolen property. It requires more than one fact, however potent
it may be, to overthrow this presumption of the defendant's inno-
cence. It requires the verdict of a jury, and until that verdict is
returned, and accepted by the court, the defendant is, throughout
Feb. 1904.] State v. Drew. 497
the case, presu-med innocent, and on the return of a verdict by the
jury he is for the first time presumed guilty." And continuing, the
court said: "The court is the judge of the law, but from being the
judge of the law it cannot lay down to the jury presumptions of law
from facts proven, which, being exercised, would make the court,
rather than the jury, the ultimate arbiter of the cause. A presump-
tion is a conclusion drawn from the proof of facts or circumstances,
and stands as establishing facts until overcome by contrary proof;
and if the court could say that such a conclusion of guilt should be
drawn from one of the important facts of the case, then the presump-
tion of innocence which obtains in favor of the defendant through-
out the trial would be transformed into a presumption of guilt as
Foon as the one fact was proven. This is not the law." And in
concluding the court said: "Any presumption that may be drawn
from such possession is a presumption of fact merely; in other words,
it is only an inference that one fact may exist from the proof of
another, and does not amount to a rule of law": Citing Wharton's
Criminal Evidence, 58; Smith v. State, 58 Ind. 340; State v. Hodge,
50 N. H. 510; 3 Greenleaf on Evidence, sec. 31; Ingalls v. State, 48
Wis. 656, 4 N, W. 785; Bishop's Criminal Procedure, sec. 745, and
Methard v. State, 19 Ohio St. 3G3. See, also, State v. Bliss, 27 Wash.
463, 68 Pac. 87, to the same effect. That unexplained possession of
recently stolen property is a fact from which the possessor's guilt
may be inferred was also held in Bryant v. State, 116 Ala. 445, 23
South. 40; State v. Sanford, 8 Idaho, 187, 67 Pac. 492; Madden v.
State, 148 Ind. 183, 47 K E. 220; Palmer v. State (Neb.), 97 N. W.
235; State v. Eosenerans, 9 N. Dak. 163, 82 N. W. 422; State v. Sally,
41 Or. ?66, 70 Pac. 396, Considine v. United States, 112 Fed. 342.
g. As a Mere Circumstance Tending to Show Guilt. — It may be
stated as a rule supported by authority that the possession of goods
recently stolen may always be shown as a circumstance in connection
■with other evidence which tends to show the possessor's participation
in the crime: Leonard v. State, 115 Ala. 80, 22 South. 564; Dodd v.
State, 33 Ark. 517; People v. Getty, 49 Cal. 581; People v. Lowrej-,
70 €al. 193, 11 Pac. 605; People v. Cline, 83 Cal. 375, 23 Pac. 391;
People V. Jockinsky, 106 Cal. 638, 39 Pac. 1077; Bergdahl v. People,
27 Colo. 302, 61 Pac. 228; Eoberson v. State, 40 Fla. 509, 24 South.
474; Cornwali v. State, 91 Ga. 277, 18 S. E. 154; Murks v. State, 92
Ga. 449, 17 S. E. 266; Bcswell v. State, 92 Ga. 581, 17 S. E. 805; Jones
V. State, 105 Ga. 649, 31 S. E. 574; State v, Collett (Idaho), 75 Pac.
271; Dawson v. State, 65 Ind. 442; State v. Tucker, 76 Iowa, 232,
40 N. W. 725; Johnson v. Commonwealth, 12 Ky. Law Eep. 873, 15 S.
W. 671; People v. Carroll, 54 Mich. 334, 20 N. W. 06; People v.
Wood, 99 Mich, 620, 58 N. W. 638; State v. Bryant, 134 Mo. 246,
35 S. W. 597; State v, Jones, 19 Nev. 365, 11 Pac. 317; State v. Lax
<N. J. Sup.), 59 Atl. 18; Knickerbocker v. People, 43 N. Y. 117;
Am. St. Rep. Vol. 101—32
498 Ameeican State Eepoets, Vol. 101, [Missouri,
Langford v. State, 17 Tex. App. 445; Boyd v. State, 24 Tex. App.
570, 5 Am. St. Eep. 908, 6 S. W. 853; Taylor v. State, 27 Tex. App.
463, 11 S. W. 462; Lamater v. State, 38 Tex. Cr. 249, 42 S. W. 304-
Cooper V. State, 29 Tex. App. 8, 25 Am. St. Kep. 712, 13 S. W. 1011;
Favro v. State, 39 Tex. iCr. 452, 73 Am. St. Eep. 950, 46 S. W. 932;
Boersh v. State (Tex. Cr.), 62 S. W. 1060; Jones v. State (Tex. Cr.),
68 S, W. 2617; People v. Kerm, 8 Utah, 268, 30 Pac. 988; State v.
Harrison, 60 Vt. 523, 44 Am. St. Rep. 864, 29 Atl. 807; Walker v.
Commonwealth, 28 Gratt, 969; Wright v. Commonwealth, 82 Va. 183;
Branch v. Commonwealth, 100 Va. 837, 41 S. E. 862; Murphy v. State,
8G Wis. 626, 57 N. W. 361.
Hence the courts sometimes say that such unexplained posses-
sion is a guilty circumstance: People v. Brady, 133 Cal. xx, 65
Pac. 823; State v. Sanford, 8 Idaho, 187, 67 Pac. 492; Johnson v.
Territory, 5 Okla. 695, 50 Pac. 90; State v. Sally, 41 Or. 366, 70 Pac.
396; State v. Bliss, 27 Wash. 46*3, 68 Pac. 87. Of course the weight
to be attached to such possession as a criminating circumstance is, by
the weight of authority, a matter for the jury and depends upon all
the circumstances of the case. It seems that no rule can be formu-
lated which would fit all cases, without invading the province of the
jury. The recent case of People v. Lang, 142 Cal. 482, 76 Pac. 232,
illustrates the weight which logically will force itself upon the minds
of the jury from a possession accompanied by suspicious circum-
stances or false explanations. In that case the owner missed his over-
coat from his room on the evening of August 6th, although he had
placed it in the clothes-press on the morning of the 5th. The court
in reviewing the case, said: "There is evidence, which, if true (and
we must presume it to be for the purposes of this case), shows that
on the morning of August 6th the defendant took the overcoat to a
loan office at 22 Mason street and pawned it for four dollars; that
lio signed a fictitious name on the books at the loan office, to wit:
'G. Eeed, 1101 Eddy St.'; that the overcoat is the property of Orr;
that it was found at the loan office bj' detectives Dinau and Wren;
that the name ' G. Eeod, 1101 Eddy St.,' written in the books of the
loan office is the handwriting of defendant, and tliat defendant when
arrested denied that he pawned the overcoat. We think the above
facts sufficient to justify the implied finding of the jury that the
defendant entered the room where the overcoat was, and from which
it was taken. Some one took it from the rooms of Orr on or about
the time charged. Defendant on the same day had the coat in his
possession. He took it to a loan office. He there signed a fictitious
name and afterward denied the signature. While possession of the
stolen property is not of itself sufficient evidence of the guilt of
the party in whose possession it is found, still the recent possession,
unexplained, is a very strong circumstance, when taken in connec-
tion with other circumstances that point to guilt. The fictitious
name given at the loan office, the pawning of the coat on the very
Feb. 1904.] State v. Drew. 499
day it was lost, and the denying of the signature on the books of
the loan oflSce are potent facts which are sufficient to justify the
inference of guilt. The authorities hold that where goods have been
feloniously taken by means of a burglary, and they are immediately
or soon thereafter found in_ the possession of a person who gives
a false account, or refuses to give any account, of the manner in
which he came into the possession, proof of such possession and
guilty conduct is presumptive evidence not only that he stole the
goods, but that he made use of the means by which access to them
was obtained: Davis v. People, 1 Park. C, C. 447; Knickerbocker
V. People, 57 Barb. 365; Regina v. Exall, 4 Post. & F. 923; Walker
V. Commonwealth, 28 Gratt. 969; Methard v. State, 19 Ohio St. 363;
Wharton's Criminal Law, sec. 763 et seq.; People v. Flynn, 73 Cal.
511, 15 Pac. 102; People v. Smith, 86 Cal. 238, 24 Pac. 988. In the
latter case this court said in speaking of a conviction of burglary:
'The evidence of the recent possession of the stolen property, to-
gether with the defendant 's statements and the circumstances sur-
rounding the transaction, were sufficient to warrant the jury in their
verdict.' The overcoat could not well have been taken from Orr's
rooms without the party who took it having entered the room."
In People v. Abbott, 101 Cal. 645, 36 Pac. 129, the court held that
unexplained possession of stolen property was a circumstance tend-
ing to show guilt and that the possessor must explain his possession
in order to remove its effect as a circumstance of that character.
III. Nature and Conclusiveness of Presumption.
a. Nature of the Presiunption Raised. — ^In commenting upon the
various characterizations made by the courts of evidence of pos-
session of recently stolen property in the last subdivision, we neces-
sarily discussed the subject of this subdivision to a certain extent,
hence we will not add much to what has been already said on the
subject. In the somewhat early but well-considered case of State v.
Hodge, 50 ]Sr. H. 510, the court in discussing the nature of the pre-
sumption M'hich is said to arise from such possession, reviewed many
of the early English cases and discussed the general origin of tho
rules regarding the effect of such possession. At page 521 of the
opinion the court said: "Under various influences adverse to a crit-
ical and rigid maintenance of the distinction between law and fact,
not only was it the practice for the judge to give the jury his opin-
ion on the facts, but it was recognized by all the authorities as a
correct practice. When, for many ages, the court had constantly
said to the jury: 'There is such and such a ]-.resumption ' without
making any reference to, or thinking of, its cliaracter as a presump-
tion of law or a presumption of fact, how couM its true character
be understood and preserved? It would have been wonderful if fiuch
a uniform and approved practice had not, in the course of time,
practically buried or obliterated the dividing line between law and
600
American State Eeports, Vol. 101. [Missouri,
fact. At very many points, and particularly through the regions of
presumptions, and produced great difficulties for those who should
endeavor to make partition of what had so long been held in common
and undivided, thoroughly commingled and blended together. We
are not left to conjecture whether such a practice would be likely
to produce such a result. We know it has produced it. We are now
contending with those difficulties. The law is burdened and obscured
by a great mass of common opinion, general understanding, practice,
precedent, and authority (including the presumption from possession
of stolen property), that has passed for law, but is in truth not law,
but fact, coming down to us largely by descent from the ancient
custom of the judge giving the jury his opinion of the evidence. To
clear the law of this encumbrance, revive elementary principles,
strictly legal in their nature, separate the province of the court from
the province of the jury, and maintain the latter in its entirety, is a
duty put upon us by the constitution as interpreted in Pierce v. State,
13 X. H. 536." Then after commenting on the decision of the last
cited case, which held, on constitutional grounds that the jury are
not the judges of the law in criminal cases, the court continued: "This
point is so well settled and so well understood that no one would sup-
pose it in the power of the legislature to transfer the duty of finding
the facts, from the jury to the judge, in any case in which a party has
a constitutional right to a trial by jury and insists upon his right.
And if the jndge cannot constitutionally take that duty upon himself
when expressly directed so to do by a statute, he cannot constitu-
tionally take it upon himself in the absence of such a statute. When,
therefore, we have come to the conclusion that the presumption from
possession of stolen goods is a presumption of fact we find ourselves
prohibited by the constitution from delivering to the jury the pre-
sumption as a result binding upon them, or a rule by which they are
to be governed." In the very recent case of State v. Brady, 121
Towa, .561, 97 N. W. 62, the nature of the presumption arising from
such possession was also discussed. The discussion arose over an
instruction. The court said: "The further instruction in the same
paragraph that the effect of such possession of stolen property is
'to raise a presumption of guilt of the defendant unless the attend-
ing circumstance or other evidence overcome the presumption that is
hereby raised as to create a reasonable doubt of guilt,' has perhaps
too much support in some of the precedents to justify us in reversing
the case on that ground; but we think the language unhappily
chosen. The law does not attach a 'presumption of guilt' to any
given circumstance, nor does it require the accused to 'overcome
the presumption thereby raised' in order to be entitled to an ac-
quittal. What the law does say is that the fact of possession is evi-
dence of guilt upon which a conviction may properly be returned,
unless the other facts or circumstances developed be such that, not-
withstanding the recent possession, the jury still entertains a reason-
Feb. 1904.J State v. Drew. 501
able doubt of the defendant's participation in the crime. It is in
this sense that the words 'presumption' and 'prima facie evidence'
must be understood when employed in this connection: Smith v.
State, 58 Ind. 340; Ingalls v. State, 48 Wis. 647, 4 N. W. 785; Com-
monwealth V. Eandall, 119 Mass. 107; Smith v. People, 103 111. 82;
Bronson v. Commonwealth, 92 Ky. 330, 17 S. W. 1019; People v.
Titherington, 59 Cal. 598. In 1 McClain's Criminal Law, section (717,
it is said the rule here stated is 'sounder in principle than that
which requires the defendant in some form to overcome the presump-
tion and establish his innocence.' That the word 'presumption' as
used in this class of cases, indicates no more than that the fact of
possession is sufficient evidence to sustain a finding of guilt, is shown
by the language, employed in the opinion of this court in State v.
Kelh--, 57 Iowa, 646, 11 N. W. 635, where it is said: 'The recent un-
explained possession of stolen property tends to establish the guilt
of the person in whose possession it is found, and will authorize con-
viction unless the inference of guilt is overcome by other facts tend-
ing to establish the innocence of the accused The law holds
that the presumption in question, unless overcome, will authorize a
conviction.' If, as here indicated, the term 'presumption of guilt,'
be understood as something which authorizes conviction, and not
something requiring it, its use is not open to just criticism; but,
unless guarded by proper explanation, we think there is danger that
jurors may give it the latter construction." And in Blaker v. State,
130 Ind. 205, 29 N. E. 1077, it was said: "The presumption thus
raised is a presumption, or rather an inference of fact, and not a legal
presumption: Smith v. State, 58 Ind. 340. That is, the courts cannot
say, because of such possession and want of explanation, that as a
question of law the accused must be deemed guilty, but the jury are
authorized to consider such evidence as tending to show guilt, and,
the larceny being shown, the circumstances connected with such pos-
session, and want of explanation may be sufficient to make the ques-
tion of guilt as a question of fact, conclusive and sufficient in and
of themselves to justify conviction.
"The length of time that must elapse after the larceny of goods
I'cfore their possession should cease to be considered as tending with
other facts to show guilt is, as a rule, purely a question of fact for
the jury. Naturally, the shorter the time the stronger the inference,
but the weight of such inference must be determined by the jury."
It has been held in quite a number of cases that the prosumption
raised by possession of stolen property is a presumption of fact and
not of law: Boykin v. State, 34 Ark. 443; Van Straaton v. People,
26 Colo. 184, 5G Pac. 905; Bellamy v. State, 35 Fla. 242, 17 South.
560; Blaker v. State, 130 Ind. 203, 29 N. E. 1077; Campbell v. State,
150 Ind. 74, 49 N. E. 905; Snowden v. State, 62 Miss. 100; State v.
Hale, 12 Or. 352, 7 Pac. 523; State v. Pomeroy, 30 Or. lb', 46 Pac.
502 American State REroRTS, Vol. 101. [Missouri^
797; state v. Walters, 7 Wash. 246, 34 Pac. 938, 1098; State v.
Heaton, 23 W. Va. 773.
b. Effects on Burden of Proof. — We have seen from the cases alrendv
considered that an explanation of the possession of recently stolen
property is necessary in order to overcome the effect of the evidence
of the possession no matter whether the possession be considered as
raising a presumption, inference or a mere circumstance of guilt: See
People V. Abbott, 101 Cal. 645, 36 Pac. 129, to that effect. So, also,
in the recent case of State v. Brady, 121 Iowa, 561, 97 N. W. 62, it
was stated that: "The law does not attach a 'presumption of guilt'
to any given circumstance, nor does it require the accused to 'over-
come the presumption thereby raised' in order to be entitled to an
acquittal. What the law does say is that the fact of possession is
evidence of guilt upon which a conviction may properly be returned,
unless the other facts or circumstances developed be such that, not-
withstanding the recent possession, the jury still entertains a reason-
able doubt of the defendant's participation in the crime." In Van
Straaten v. People, 26 Colo. 188, 56 Pac. 905, the court after holding:
that the presumption of guilt arising from such possession, is one of
fact for the jury, said: "It being, therefore, a mere inference of fact.
the court erred in instructing the jury that the recent possession of
the stolen property was in law a strong criminating circumstance,
thereby giving the jury to understand that the guilt of the accuse 1
is a presumption which the law requires shall bo made from tho
fact of his being found in possession of the stolen property, instead
of an inference or conclusion of their own, which they may or may
not adduce from that fact, in connection with the other facts and
circumstances of the case. It is also eiron(^ous in imposing iipou
plaintiffs in error the burden of satisfying the jury that they c-xme
into possession of the property lionestly. The law imposes no such
burden upon a defendant in a criminal case. If the possession of the
property by plaintiffs in error had been of such a character as, une\'-
plained, would have constituted a criminating circumstinco^ it would
not have devolved upon them to show, even bv a preponderance of
testimony, that tliey came by it lionestly. If tb.eir explanation
created a reasonable doubt in the minds of the jury as to tliat fact,
rt would be sufficient to rebut the presumption of guilt. '^ So also
in the case of .Johnson v. Territory, 5 Okla. (iti.l. ''i I>;;c. <)i) (ni,,t.'d
from extensively in the section relating to inferences of guilt, it was
substantially lield that the burden of proof never sliifted t,, ihi.
defiMidant in a criminal case. Many of the cases, as we liavi- seen,
in stating the rule, broadly say that the law imposes the burden upon
the possessor of recently stolon p-nperty to account for his posses-
sion and show that his po-session was innocentlv acquired. See
Johnson v. State, 148 Ind. 524, 47 X. E. 9J(), as an example of those
cases. The preceding section^ treating on the effect of the posses-
Feb. 1904.] State v. Drew. 603
sion of stolen property contain many illustrations of such statements
of the rule. In Cooper v. State, 87 Ala. 135, 6 South. 303, the rule
was stated in the following language: ^'The settled rule in this state
is, that the possession of goods, recently after a larceny or burglary,
which were stolen in the commission of the offense, imposes on the
possessor the onus of explaining his possession, if he would repel the
inference of complicity in the crime." So, also, in State v. Manley,
74 Iowa, 561, 38 N. W. 415, the court in reviewing an instruction
said: "Under it the jury were warranted in convicting the defendant
on proof of the fact that he had the stolen property in his posses-
sion, unless he had established to their satisfaction that he did not
steal it. But that is not the rule. The defendant was entitled to an
acquittal, unless the jury could say, upon a consideration of all the
evidence, that they entertained no reasonable doubt of his guilt.
But a reasonable doubt may be engendered by evidence which does
not satisfactorily establish the fact sought to be proven. If the evi-
dence was sufficient to raise a reasonable doubt as to whether de-
fendant received the property under the circumstances claimed by
him, it necessarily raises such doubt as to his guilt, in so far as that
question rests alone upon the fact of possession." And this same
court in the very recent case of State v. Kaphael, 123 Iowa, 454, 99
N. W. 151, said: "The appellant, Joseph Raphael, insists that, be-
cause of his explanation of his possession of the silveiware found
in the attic and taken therefrom upon the first search, the case as
to him should not have gone to the jury, and that the court erred in
not directing a verdict for him. But with this contention we cannot
agree. This property was found in his possession but a few days
after it was stolen, and in the absence of a satisfactory explanation
of the possession, the jury would be justified in finding that he
broke and entered the building from which it was stolen: State v.
Jennings, 79 Iowa, 513, 34 N. W. 799; State v. Williams, 120 Iowa,
36, 94 N. W. 255; State v. Brady, 121 Iowa, 561, 97 N. W. 62. It
is true that the convenient other person from whom stolen property
is so often received was present in this case in the defendant's ex-
planation, but the jixry would not be bound to believe the explana-
tion, though it might not be contradicted by other direct evidence;
and if the attendant circumstances were such as to satisfy it of the
falsity of the explanation, and of the guilt of the defendant, a con-
viction would be justified." In State v. Weston, 9 Conn. 527, 25
Am. Dec. 4G, it was held that possession of stolen propertv throws
upon the possessor the burden of accounting for his possession. And
in State v. Garvin, 48 S. C. 258, 26 S. E. 570, it was said the possessor
must rebut the presumption of guilt raised by possession of recentlv
stolen property and in State v. Briscoe, 3 Penne. 7, 50 Atl. 271. it
was said that the possessor of recently stolen property must over-
come the presumption that he is the thief. In People v. Hart, 10
504
Ami;rican State Reports, Vol. 101. [Missoun%
Utah, 204, 37 Pac. 330, it was licld, under a statute providinjr that
defendant's refusal to testify can in no manner prejudice him, that
the fact that defendant makes no statement explaining his posses-
sion of a pistol six hours after a burglary raises no presumption
against him. And in State v. Eubank, 33 Wash. 293, 74 Pac. 378, it
was held under a Washington statute that possession of a range
animal throws the burden of explaining possession on him, though
it was said the rule was otherwise in ordinary' larceny cases.
It may be observed in this connection that although many of the
courts in stating the rule regarding the raising of a presumption from
the fact of recent possession of stolen property fail to state that
the possession in order to raise the presumption must have been un-
explained, still a close reading of these cases will generally disclose
the fact that the possession about which they were speaking was an
unexplained one. Indeed, many of the cases distinctly state that it
is tlie very want of an oxplanatinn which gives rise to the probative
effect of such a possession. It scoms to us that viewing the matter
in that light, evidence of the possession of recently stolen property
places the accused possessor in no worse position than proof of any
other unexplained fact tending to show a defendant guilty of an
offense. The nature and effect of explanations given by the posses-
sor concerning the acquisition of his possession will be discussed in
a subsequent part of this note.
c. Effect of Good Reputation on Presumption. — The admissibility
of evidence of the good reputation of the possessor of recently stolen
property to rebut the effect of the evidence of his possession as a
criminating circumstance does not seem to be disputed: State v. Sar-
seen, 75 Mo. App. 197; Watts v. People, 204 111. 233, 68 N. E. 563.
The effect of such evidence seems to be a matter for the jury. In
State V. Carr (Del.), 57 Atl. 370, it was said: "Evidence of good
character, when offered, is to be considered by the jury in connection
with all the testimony in the case, in their endeavor to reach tlieir
conclusion as to the guilt or innocence of the accused." So, also, in
State V. Ilogard, 12 Minn. 293 ((iil. 19()), it was held that such proof
is proper but tliat its weight is for tlie jury. In State v. Merrick,
]!> Me. 308, in speaking of such evidence as a mode of overcoming
tlie effect of the fact of being in possessitiu of recently stolon prop-
erty, the court snid: "Proof of good cliavactcr may sometimes bo
the only mode by which an innocent man c'tii repel the prcsuiiiptiou
of gnilt Jirising from the recent possossidti of stolen goods. As, for
instance, where the party really guilty, to avoid detection, thrusts,
unolistTvcil in a ci'dwd, the article siolen into the pocket of anotlicr
man. This may lie done and the innocent party ])0 unconscious of
it at the time. And yet good character is not proof of innocence
although it may be sufficient to raise a reasonable doubt of guilt."
And in State v. King, 122 Iowa, 4, 96 X. W. 712, the court in
speaking of the effect of such evidence in such cases, said: "But ap-
Feb. 1904.] State v. Drew. 505
pellant insists that, as the evidence was purely circumstantial, the
proof of good character ought to be held so far defensive as to over-
come any inference of guilt to be drawn therefrom. Such evidence,
however, has been frequently declared to afford no defense. It i»
received as merely tending to show that the accused would not have
been likely to have committed the crime charged, and is to be given
such weight only as the jury may deem it entitled to receive": Citing
State V. House, 108 Iowa, 68, 78 N. W. 859; State v. Northrop, 48
Iowa, 583, 30 Am. Eep. 408. See, also. People v. Hurley, 60 Cal. 74,
44 Am. Eep. 55; People v. Curran (Cal.), 31 Pac. 1116; Watts v.
People, 204 111. 233, 68 N. E. 563.
IV. What Constitutes Possession.
a. In General.— In State v. Smith, 2 Ired. (24 N. C.) 402, the
court, in discussing the nature of the possession of stolen property
necessary to constitute a presumption of guilt, said: "But when we
examine the cases, in which such a presumption has been sanctioned,
or consider the grounds of reason and experience on which the pre-
sumption is clearly warranted, we shall find that it applies only when
this possession is of a kind which manifests that the stolen goods
have come to the possessor by his own act, or, at all events, with
his undoubted concurrence." So, also, in People v. Curran (Cal.), 31
Pac. 1116, it was held that the fact that stolen wheat was stored
in an outhouse of defendant by a codefendant, whom it was not
shown that he knew, was insufficient to show such a possession as
would warrant a conviction. So in State v. Van Winkle, 80 Iowa,
15, 45 N. W. 388, which was a cattle theft case, the court said: "There
was testimony tending to show that defendant made his home at his
father's. He was a single man, and so far as appears, had no other
home. He always came there to stay when not at work elsewhere,
and when there worked on the farm. In his testimony he speaks of
the place as 'our house.' The presumption of guilt that arises
from recent unexplained possession of the stolen property docs not
attach until the possession is shown. Whether the accused had pos-
session was a question for the jury. This testimony was not onlj'
competent as tending to show that the defendant had possession of
the cattle, but also as bearing on the question whether the cattle
had strayed or were stolen.
"The part of the instruction complained of is as follows: 'If the
animals in question were found on the farm of defendant's father a
short time after they were stolen, if they were, and even if that was
defendant's home, still this would not necessarily put said animals
in possession of defendant unless you find that he exercised control
over the same under a claim in himself.' This instruction was cer-
tainly as favorable to defendant as ho could ask." And in State
V. Kreiger, 4 Mo. App. 584, it was held that testimony showing
that the stolen goods were found concealed underneath clothing, in
506 American State Reports, Vol. 101. [Missouri,
the false bottom of a bureau drawer, which defendant acknowledged
to be his, and of which he kept the key, if unexplained, is sufficient
proof that the goods were found in defendant's possession to sup-
port a conviction on that point. In Watts v. People, 204 111. 233, 68
N. E. 563, it was held that where hogs were driven in defendant's
yard by his son and a third person without defendant's knowledge,
that there was no such possession as would make the defendant prima
facie guilty of larceny of the hogs. And in Van Straaten v. People,
26 Colo. 184, 56 Pac. 905, it was said: "The only circumstance dis-
closed by the testimony that could tend in any way to criminate
the plaintiffs in error was the alleged possession by them of the
stolen property. While in the absence of direct proof of the taking,
the possession of stolen property is a circumstance from which the
jury may infer that the accused committed the theft, yet in order
to give to this circumstance an evidentiary force sufficient to sus-
tain a conviction, the possession must be personal and exclusive,
recent and unexplained, and must involve a distinct and conscious
assertion of property by the defendant": Citing Wharton on Crimi-
nal Evidence, sec. 758, and cases cited.
b. Necessity for Identification of the Stolen Property. — That the
alleged stolen property must be identified as being the property of
the alleged owner does not seem to be disputed. Wliat evidence con-
stitutes an identification is of course a matter for the jury. Tlie
necessity for a clear identification is illustrated by the following
cases: Thus, in State v. Ballard, 104 Mo. 634, 16 S. W. 525, it was
held that the larceny of a cow described as a "red and white spotted,
line back cow" was not sustained by evidence showing possession by
the defendant of a "red and white spotted cow," the "lined
back" being a descriptive flesh mark of the stolen cow. In Stewart
V. State, 24 Tex. App. 421, 6 S. W. 317, it was held that possession
of a stolen cow, described as being red with some little white,
marked with a smooth crop off her left ear, and with a white tail
bush, was not shown by possession of a cow which had no crop off
either ear but was marked with a split in the under part of one
ear, and with a red tail. In Roy v. State, 34 Tex. Cr. 301, 30 S. W.
666, it was held that where the owners of seed cotton, which was
stolon, could not identify seed cotton in possession of the dcfemi-
ants as their seed cotton and the quantity was less than tlie (jiian-
tity stolen, that there was no such possession as would authorize a
charge ui>f)n the effect of possession of recently stolen propi.'rty.
c. What Must be Shown Where the Stolen Property is Money.—
In I'cople V. (ictty, 49 Cal. 5S3, it was said: "The possession of
n'oiiey of the same kin.l as that which was recently stolen is iisuallv
of slight, if any, wei^lit as evidence to prove th.e guilt of the person
in whose possession it is found, if nioiiey of tins kind is in gtMiei-al
circulation at tliat place; but it is ot' nuirh greater signifieauce, when
that kind of money is rarely seen in circulation at that place, and
Feb. 1904.] State v. Drew. 607
its value as evidence is further increased when both the money found
in possession of the accused and that which was stolen consists of a
combination of pieces of such money, as in this case, of a large
number of Chilian half ounces and a single Peruvian ounce. It
strongly tends to the identification of the money as the money which
was stolen, and thus to connect the defendant with the burglary":
See, also. People v. Melvane, 39 Cal. 614. In United States v. Can-
dler, 65 Fed. 308, which was a prosecution for the larceny of a
postoffice, the district judge, in charging the jury, said: "The evi-
dence shows that on the day after the robbery the defendant was
arrested at Murphy and on search he was found in possession of a
ten dollar gold piece and some silver change and coppers, amount-
ing to about twenty-five dollars, but no five dollar bank bill or
stamps. If any of the coin had been marked so that it could have
been strictly identified as the property stolen, such fact would have
given rise to a strong presumption of guilt, as the coin found
upon his person was like the ordinary circulating currency
of the country, incapable of strict identity, no presumption of
law arises, but the fact is a circumstance which may be considered
in connection with other circumstances as evidence of guilt." In
Hicks V. State, 99 Ala. 169, 13 South. 375, which was a prosecution
for the larceny of four ten dollar coins, it was held that the prose-
cution could show that when the defendant was arrested, the day
after the larceny, he had in his possession a five dollar coin and that
he handed to a companion a bag containing a ten dollar coin and ten
silver dollars, there being also evidence from which the jury might
infer that his money was procured in exchange for that stolen. In
Kaiser v. State, 35 Neb. 704, 53 N. W. 610, it was sought to convict
the defendant of larceny on the strength of possession of the stolen
money, the court said: "No attempt was made by the state to iden-
tify the money found in the possession of the accused as that lost
by Gallagher, further than as stated above. The case therefore is
this: Gallagher, while intoxicated, lost a sum of money. Soon there-
after the plaintiff in error is proven to have been in possession of a
sum of money corresponding in kind to that lost by Gallagher, aud
under circumstances tending to show that he did not come l)y it
I'Oucstly. Circumstantial evidence to warrant a conviction should
be of such a convincing character as to prove beyond a reasonable
doubt that the accused, and no other person, committed the crime
with which he is charged: Walbridge v. State, 13 Neb. 236, '13 N. W.
209; Bradshaw v. State, 17 Nob. 147, 22 N. W. 301. Here, aside
from the possession by the plaintiff in error of an unusual sum of.
money, there is no proof whatever to connect him with the larceny, if
we assume that the money was in fact stolen from Gallagher, an as-
sumption not fully warranted by the evdi'iice. Not only is there a faii
ure to show an opportunity for the commission of the crime chargdl,
but it affirmatively appears from the testimony of the witnesses for
508 Ameeican State Ekports^ A'ol. 101. []\fissouri,
the state that the plaintiff in error -was not at any time in company
-with Gallagher while the latter was in the saloon. "While the evi-
dence was admissible as tending to establish the guilt of the accused,
and while it may be said to raise a strong presumption that he did
not come by the money honestly, it is certainly insufficient to ex-
clude the theory of his innocence of the crime of larceny and to es-
tablish his guilt thereof beyond a reasonable doubt." The case of
State V. Nesbit, 4 Idaho, 548, 43 Pac. 66, is perhaps a case which
illustrates the nature of the identification evidence generally used
in seeking a conviction based principally upon the alleged fact of
possession. The opinion sets forth the evidence in detail, but the por-
tion quoted sets forth the essential parts. The court said: "Ec-
curring now to the identification of the money stolen, the foregoing
is all the evidence touching the identification of the money which the
defendant was convicted for stealing. The evidence utterly fails in
the identification of the one hundred dollar bill as the one lost by the
witness Frame. Frame testified that: 'I can't say. It looks like it.
It is for the same amount, but I can't say whether it is the same one
or not. I am not certain about it at all.' And as to the identifica-
tion of Ignited States gold coin, he testified: 'This gold coin [refer-
ring to that taken from Nesbit, Jr., by the sheriff] here is all alike,
like greenbacks, but it all looks the same as the money I saw thrown
on top of the documents spoken of in the safe. It looked just the
same as my money did.' This is no identification whatever of said
gold coin as being that lost by the complaining witness. It is not
claimed that any of the United States gold coins had any distinguish-
ing marks on them, but it is shown that they have not. The witness
testified they are all alike; that they looked like his money; not that
the}' were his. A very weak attempt was made to point out <lis-
tinguishing marks on the English sovereign and to identify it as the
one claimed to have been lost by the complaining witness. The quo-
tation from the testimony above sot forth shows how utterly the
prosecution failed in that attempt. The witness Frame at first at-
tempts to identify it by testifying that 'it had a man's head on
it. represented as a curly-headed man,' and 'it is worn more on the
face side than on the other,' and 'it appears to bo a little sprung' and
'it always felt to me like it was.' As to the man's head on one side,
that is no mark of identification, for all sovereigns of that date and
ipsiio had the same; and it is not distingiiishably worn on one side
more than the other, and it is not sprung, but in the usual shape of
sui;h coins. The witness testified: 'I recognized this coin because
it felt like the one I had. 1 tliiiik I could identify tliat sovereign
by feeling of it once. Tliis coin seems s])rung. It iias a luimp on it,
and feels difTerent tlmn an Aiiiericiin C()in. Mine felt the same way.'
Here he seeks to identify it by feeling, and signally fails. The coin
has no hump on it, but it docs feel different from an American C(jin,
and the witness swears to that, but is careful not to testify that it
Feb. 1904.] State v. Drew. 509
feels different from other sovereigns of the same date and coinage,
or that it contains a single distinguishing mark. Having utterly
failed to identify the coin by any peculiar distinguishing marks, he
undertook to identify it by the date it bore. He testified: 'The first
time I saw it I thought the date was 1826; the next time 1836; the next
time 1886,' and finally admits as follows: *I didn't pay much attention
to it.' The said sovereign is before us. It is not perceptibly worn
more on one side than on the other; it is not sprung; neither has it a
hump on it different from sovereigns of that date and coinage; and it
is of the date of 1826, while the testimony shows that the last time
Frame read the date on his coin, prior to losing, he read it 1886. It
is rather surprising that witness Frame should have so completely
failed to (ieseribe the sovereign, after having seen it taken from the
defendant, and no doubt having carefully examined it, with a view
of identifying it on the trial of this case. His eyesight and delicacy
of touch or feeling must be very defective.
"The possession of the gold coin is the only circumstance shown
by the evidence tending to connect the defendant with the larceny
cliarged, and the prosecution failed to identify said coin as that al-
leged to have been stolen. If the prosecution had identified said coins
as the ones stolen or had proved that defendant had no money prior
to the theft, either would have been a strong circumstance of de-
fendant 's guilt, and would have placed upon him the necessity of
showing that he came into the possession of said coins innocently
But as there was a complete failure to identify the coins as those
alleged to have been stolen the jury should have returned a verdict
of not guilty. The defendant must have been convicted on suspicion,
as there was no legal evidence establishing his guilt, regardless of
the utter want of evidence on behalf of the prosecution attempting
to identify the coin,
"The defendant testified in his own behalf that he brought said
gold coin from Utah, and also from whence he got it; that he had
carried money several times as he was carrying that when arrested
by the sheriff; that he was on his way to Utah and carried it thus
for safety; that he had a small collection of old coins; and that hn
had had said sovereign for more than three years — and is corroborated
as to these facts by his father, sister, two brothers, his betrothed,
and by two other witnesses not related to him. In regard to the one
hundred dollar bill, Ncsbit, Sr., testified as to circumstance and
date of drawing nineteen hundred dollars out of the Dcseret National
Bank at Salt Lake City, Utah, and that the one hundred dollar bill
was a part of that money, and is corroborated as to those facts by
one witness." The court then reversed the judgment of conviction
and ordered that the defendant be discharged.
So, also, in Barker v. State, 126 Ala. 69, 28 South. 685, it was held
that possession of the money of the same denomination as that stolen
is merely an evidentiary fact to be taken in connection with other
510 American State Keports^ Vol. 101. [Missouri,
evidence. And in Thompson v. State, 35 Tex. Cr. 511, 34 S. W. 629,
buried money found in the yard of a eodefendant, which was identi-
fied by an accomplice, through whose evidence it was located, was
held suflSciently identified as the money stolen from an express com-
pany to be admissible in evidence. In People v. Kelly, 132 Cal.
430, 64 Pac. 56*3, it was said: "Generally evidence of the wealth or
poverty of a defendant is not admissible; but the sudden possession
of money, immediately after the commission of a larceny, by one who
before that had been impecunious, is clearly admissible as a circui;i-
stance in the case." See, also, in this connection, Martin v. State,
104 Ala. 71, 16 South. 82; Leonard v. State, 115 Ala. 80, 22 South.
564; State v. Thompson, 87 Iowa, 670, 54 N, W. 1077; State v. Grebe,
17 Kan. 458; Commonwealth v. Montgomery, 11 Met. 5^, 45 Am.
Dec. 227; People v. Herrick, 59 Mich. 563, 26 K W. 767.
d. Necessity for Possession to be Recent. — An observation of the
cases which state the rule in regard to the effect of possession of
stolen property will show that the property must have been recently
stolen: See, also. Shepherd v. State, 44 Ark. 39; State v. Wolflf, 15
Mo. 168.
In Jones v. State, 26 Miss. 247, which was a prosecution for the
larceny of a saddle, the court said: "The evidence shows that the
goods were not found iu the possession of the accused until the lapse
of five or six months after the taking; and the question here pre-
sented is, whether such possession, found after such a lapse of time,
of itself, raises a presumption in law of a felonious taking by the
accused.
"No definite length of time, after loss of goods and before posses-
sion shown in the accused, seems to be settled, as raising a presump-
tion of guilt. Where the goods are bulky, or inconvenient of trans-
mission, or unlikely to be transferred, it seems that a greater lapse of
time is allowed to raise the presumption than when they are light
and easily passed from hand to hand, and likely to be so passed, be-
cause, in the one case, the goods may not have passed through many
hands, and the proof to justify the possession may, therefore, be
more simple and easy; but in the latter case, the goods may, very
probably, have come to the accused through many persons, and their
transit, from the smallness of their nature and value, be much more
difficult to be proved: Roscoe's Criminal Evidence, 18; 3 Greenloaf
on Evidence, sec. 32,
"Yet all the cases hold that the possession must be recent after
the loss, in order to impute gviilt; and this presumption is founded
on the manifest reason, that where goods have been taken from one
person and are quickly thereafter found in the possession of an-
other, there is a strong probaljility that they were taken by the
latter. This probability is stronger or weaker in proporti m to the
period intervening between the taking and the finding; or it may
be entirely removed by the lapse of such time as to render it not
Feb. 1904.] State v. Deew. 511
improbable that the goods may have been taken by another and
passed to the accused, and thus wholly destroy the presumption,
"In prosecutions for larceny of chattels like that in this case, it
has been well held, that after the lapse of such a period of time a»
in this case, the mere fact that the chattels were found in the pos-
session of the accused created no presumption of criminality; and
that such possession, without other evidence of any kind to establish
the charge, is not even sufficient to put the party on his defense ' ' i
Citing Eex.v. Adams, 3 Car. & P. 600; 3 Greenleaf on Evidence, sec.
32; State v. Williams, 9 N. C. 100.
So, also, in Mattock v. State, 25 Tex. App. 654, 8 Am. St. Eep. 451,
8 S, W. 818, the court said: "But the possession must not be toa
remote and if remote the party in possession is not bound to explain
at all; the rule being that the possession must be recent, and by all
the opinions [says Mr. Bishop] the presumption that the party in
possession was the taker diminishes in strength as the time increases
between the theft and the possession. If the possession is very re-
mote (yet how remote must depend upon the special nature of the
ease), the judge, in his discretion, will exclude it as having no suffi-
cient tendency to prove anything. Its remoteness depends upon the
nature of the thing stolen. Is it such property as passes readily
from hand to hand, or not? If, from the nature of the property, it
would pass readily from one person to another, the possession, to
have convictive strength, must be more recent than the possession
of property which does not so pass": Citing 2 Bishop's Criminal Pro-
cedure, sees. 739, 745. The same rules were also laid down in Will-
iams V. State, 40 Fla. 480, 74 Am. St. Eep. 154, 25 South. 143; Stat<>
V. Hodge, 50 N. H, 510.
So, also, in White v. State, 72 Ala. 195, the court said: " It is not
every or any possession of stolen goods by a party which will author-
ize the inference of his complicity in the crime of larceny or bur-
glary; nor in fact, every such unexplained possession, although it
■may be exclusive, as opposed to the idea of a joint possession with
others. Another is necessary in order to constitute a guilty posses-
sion. It m.ust be recent, or soon after the commission of the offense
to which it has reference: Henderson v. State, 70 Ala. 23; 1 Greon-
leaf on Evidence, sec. 34; Wharton's Criminal Evidence, sec. 75S;
Clark's Criminal Digest, sees. 97, 145, 635; Murray v. State, 48 Ala.
675; Crawford v. State, 44 Ala. 45.
^ "What is meant by 'recent' is incapable of exact or precise defini-
tion, and the term has been said to vary 'witliin a certain range
with the conditions of each particular case': Wharton's Crimiutil
Evidence, sec. 759. There are cases, no doubt, so clear in nature, and
undisputed in facts, as that the court could pronounce the possession
recent, as a matter of law; but the question is usually one of fact
for the determination of the jury. Be this as it may, we are of
512 American State Reports, Vol. 101. [Missouri,
opinion that the charge given by the court on this subject was erro-
neous, because it excluded from the consideration of the jury a neces-
sary element of a guilty possession — namely, that it should be recent;
and its vice consisted in assuming that any other kind of possession
afforded a just inference of the defendant's complicity in the crime
with which he was charged."
And in Tarver v. State, 95 Ga. 222, 21 S. E. 381, it was said that
the time which had elapsed between a burglary and the possession
of the property stolen at that time was a material question. In
State V. Shaw, 4 Jones (N. C), 440, it was held that remote possession,
though not creating a presumption, is a fact which may be considered
with other facts of the case. And in State v. Graves, 72 N. C. 4S2,
it was hold that the possession of burglarized goods two days after
• the burglary with an offer to dispose of them at less than their valn'^,
together with contradictory statements as to the manner of acquir-
ing the possession were matters for the consideration of the jury.
And in State v. Armstrong, 170 Mo. 406, 70 S. W. 874, the possession
of stolen property three days after its taking was held sufficient to
raise a presumption of guilt. And in Washington v. State (Miss.)..
29 South. 77, it was held that the finding of a yearling's hide in a
butcher-shop the next day after the yearling was missed would sup-
port a conviction for larceny. In State v. Warford, 106 Mo. 55, 27
Am. St. Eep. 322, 16 S. W. 886, it was held that the joint possession
of stolen property five or six weeks after the larceny was not pre-
sumptive evidence that either of the parties were guilty of burglary.
In McCormick v. State (Ala.), 37 South. 377, it was held that evi-
dence that a burglarized watch was found in defendant's possession
eix weeks after the burglary in another state, was competent evi-
dence. And in Bragg v. State, 17 Tex. App. 219, the possession of
stolon property five or six months after its theft was held not suHi-
cicntly recent to raise any presumption against the possessor. While
in State v. Miller, 45 Minn. 521, 48 N. W. 401, a possession eleven
months after the larceny was allowed to be considered in connection
with other facts tending to incriminate the possessor. In Porter v.
State (Tex. Cr.), 73 S. W. 1053, certain wagon wheels wore missed in
November, 1901; defendant openly used them in November, 1902, claim-
ing to have exchanged scrap iron for them with a peddler. The court
held that defendant's possession was not of such a recent character as
to sustain a conviction. In Beck v. State, 44 Tex. 430, it was held
that public use of property two years after its larceny raised no
presumption of guilt against the possessor. And in Matlock v. State,
25 Tex. App. 654, 8 Am. St. Eep. 451, 8 S. W. 818, it was held that
mere possession of a stolen cow two years after its larceny raised
no presumption of guilt. So, also, in Komero v. State, 25 Tex. App.
394, 8 S. W. 641, it was held that the possession of a horse three
years after its larceny was too remote without other facts to raise
a presumption of guilt.
Peb. 1904.] State v. Drew. 613
e. Necessity for Possession to be Exclusive.
1. In General. — The rule that the possession of recently stolen
property must be exclusive in the possessor in order to raise any
presumption or inference that the possessor is guilty of the crime at
which the property was stolen seems to be so well established that
the courts take it for granted in their discussion of the subject:
White V. State, 72 Ala. 195; State v. Warford, 106 Mo. 55, 27 Am.
St. Eep. 322, 16 S. W. 886; State v. Belcher, 136 Mo. 137, 37 S. W.
800; Jackson v. State, 28 Tex. App. 370, 19 Am. St. Eep. 839, 13 S.
"W. 351. The fact that the property was found in the apparent pos-
session of the accused is admissible, but the effect of the possession
as evidencing his guilt is weakened by the fact that others besides
the accused had access to the place: Gablick v. People, 40 Mich. 292.
2, Effect of Joint Possession. — 'When the courts discuss the ques-
tion of joint possession, it seems that the real question to be de-
termined is whether any one of the joint possessors was as a matter
of fact in the exclusive possession. In Shropshire v. State, 69 Ga.
276, the discussion of the subject by the court was as follows:
"The court was requested in writing to give the following charge
to the jury: 'The fact that goods were found in the room occupied
by two, or three or more persons, is not conclusive evidence that the
goods were in the possession of any one of them.' To this charge
the judge added: 'That is true, gentlemen, provided the occupants
of the room all occupy it alike. But if the house was the house of
one of the parties, if it was his house and his home, and he gives no
explanation of it, then the law will treat it as his possession.'
"That goods found in a room occupied by two, or three, or more
persons, is not conclusive evidence that they were in the possession
of any one of them is, we think, a correct legal principle. It would
certainly be a very stringent rule to put upon parties, to say that
the mere fact that goods were found in a room occupied by several
was conclusive evidence that they wore in possession of any particu-
lar one of the occupants. Numerous good and sufficient reasons ex-
ist why this should be exclusive, and the accused was entitled
to the charge as requested.
"Xor do we think that the supplemental charge, under this testi-
mony, was altogether legal. Although this house was the house and
home of the accused, yet the evidence showed the fact that it was
also the home of others, and the exclusivcness of ownership and
dominion over the small space to which those others exercised the
right of possession and occupancy should not have been so distinctly
ignored by the judge." In State v. Tilton, 63 Iowa, 117, 18 N. W.
716, the defendant was indicted for the burglary of a store in
February, and the only evidence against him was that some of the
burglarized goods were found the following July in a trunk jointly
used by the defendant and another, t^igetlier with the fact that de-
Am. St. Rep. Vol. 101—;-;;;
514 American State Reports, Vol. 101. [Missouri,
fendant had been at the store the evening before the burglary.
The court held the facts insuiScient to justify a conviction. In
Moncrief v. State, 99 Ga. 295, 25 S. E. 735, it was held that where the
house where burglarized goods were found was shared with another
or others, that the possession of that house could not be treated as
that of the accused, but that if the accused did have possession with
others, that fact could be considered in connection with all the other
evidence in passing upon the question of his guilt or innocence. In
tHe frequently cited case of State v. Warford, 106 Mo. 55, 27 Am.
St. Rep. 322, 16 S. W. 886, the court in discussing the matter, said:
"We must conclude that the instruction in declaring that a pre-
sumption of guilt arose if the saddle, recently after the burglary,
was found in the possession of defendant and another person, did not
properly declare the law. After careful consideration and much doubt,
we have reached the conclusion that the sixth instruction given de-
fendant did not cure the fault of the sixth given the state. If the
latter had confined the possession to defendant and Webb, then the
former instruction might have sufficiently explained the character of
the joint possession referred to in the latter, which would create the
presumption of guilt. But was there such unexplained and recent
joint possession of both defendant and Webb as would reasonably
raise an inference, even that the burglarious act charged was their
joint act? If the joint possession raises a presumption of guilt
against one, it does also against the other. There is no evidence
tending to prove that the joint possession commenced until the stolen
property was placed in the wagon which was under their joint con-
trol. The possession, then, of both did not commence until five or
fix weeks after the larceny. No connection or confederacy between
the parties was shown to have existed prior to the preparations for
their journey to Kansas. There is no evidence that the saddle was
in the joint possession of these parties for a considerable time after
it was stolen, during which time it must have been in the exclusive
individual possession of one or the other of them. When the stolen
property was put into the wagon, one party may possibly have been
wholly without knowledge of the fact that it had been stolen, or he
may have known that it was stolen, but took no further responsibility
therefor, or he may have known it was stolen, and undertook to as-
sist in concealing and disposing of it; but none of these facts, how-
ever well proved, or however criminal in themselves, would make
him guilty of breaking into the barn with the intent to steal; much
less would tlie mere fact of having the saddle in the wagon, without
other explanation, raise a presumption of such breaking. Under
the evidence, we think the joint possession too remote to create a
presumption that either Webb or defendant was guilty of the
burglary."
3, Effect of Public Access to Place of Deposit. — .Tustice Cooley,
in Gablick v. People, 40 Mich. 293, remark that: "Possession of
Feb. 1904.] State v. Drew.
515
stolen property, if immediately subsequent to the larceny may some-
times be almost conclusive of guilt (see Walker v. People, 38 Mich.
156), but the presumption weakens with the time that has elapsed,
and may scarcely arise at all if others besides the accused have had
equal access with himself to the place where it is discovered." And
in Watts v. People, 204 111. 233, 68 S". E. 563, it was said: "It is true,
that the hogs, after being stolen, were driven through the barn of
plaintiff in error and into a yard adjoining the barn, called the
chicken-yard, and that both the chicken-yard and the barn were a
part of the premises of plaintiff in error. But the rule that, where
stolen property is found in the possession of a person immediately
after the commission of a theft, it is prima facie evidence of guilt,
refers to a possession which is exclusive. 'In order that the recent
possession shall be evidence of guilt, it must be exclusive in the de-
fendant; that is, it must be such as to indicate that the defendant,
and not someone else, took the property. If the place where the
property is found is such that others have access thereto as well as
the defendant, the property cannot be said to be in the exclusive
possession of the defendant, and the circumstance would not be evi-
dence of his guilt': 1 McClain on Criminal Law, sec. 620. The evi-
dence shows that Thomas Watts, Jr., the son of plaintiff in error,
was staying at his father's house, and had been staying there for two
weeks. He had access to the premises in question as well as plain-
tiff in error. The hogs, even after they were taken to the premises
of plaintiff in error, were, as a matter of fact, in the possession of
Thomas Watts, Jr., and Oliver Tomlin. Some cases hold that, al-
though it appears that the goods are found in a place not exclusively
occupied or controlled by defendant, the fact that other persons had
access to the place merely weakens, but does not destroy the effect
of the evidence: 1 McClain on Criminal Law, sec. 620; Padfield v.
People, 146 111. 660, 35 N. E. 469. But even under this view of the
doctrine of possession of stolen property as evidence of guilt, the in-
struction in question was too strong in assuming that the possession
of the property was solely the possession of the plaintiff in error,
and excluded from the consideration of the jury the fact that
Thomas Watts, Jr., had access to the place where the hogs were taken,
as well as plaintiff in error."
So, also, in People v. Hurley, 60 Cal. 74, 44 Am. Eep. 55, the court
said: "We do not think that the bare fact of finding the hides of
cattle that had been stolen in the defendant's barn, which is shown
to have been open to anyone who chose to enter it, in the absence
of any evidence tending to prove that he knew or had any reason
to suppose that such hides were there, sufficient to justifv the infer-
ence which the jury must have drawn from it, in order to find the
defendant guilty, and we also think that until his declaration that
he knew nothing about the hides being there was shown to be false,
he was not called upon to give any explanation as to how thev came
516 American State Reports, Vol. 101. [Missouri,
there. If he did not know that they were there, he could not ex-
plain how they came there."
In Davis v. People, 1 Park. Cr. Eep. 447, part of the burglarized
goods were found in defendant's trunk, which was in the midship of
a canal boat, in which other persons resided and to which anyone
might have access. The trunk, when placed on board the boat, had
been locked, but previous to the finding of the stolen goods therein,
the lock had been broken. The court said: "The fact that a por-
tion of the goods were found in the prisoner's trunk under such cir-
cumstances, is little, if any, stronger than it would have been had
they been found in some other part of the boat. And even admitting
that the jury were warranted in finding, as a question of fact, that
the goods were found in the defendant's poFsession, still I am of
opinion the judge should have instructed them that possession alone
of that character was not sufficient to raise the presumption that
possession was obtained by means of a burglary committed by the
prisoner." And in State v. Griffin, 71 Iowa, 372, 32 N. W. 447, it
was held that the mere finding of stolen property in defendant's
place of business, there being other inmates, raised no presumption of
guilt. So, also, in Washington v. State, 21 Fla. 328, it was held
that tlie fact that stolen property was found in a hollow stump near
a new house into which the accused was moving, was not sufficient
to show that the accused was in possession of the property: See, also,
Van Straaten v. People, 26 Colo. 184, 56 Pac. 905.
4. Effect of Access by Family of Accused. — In Perkins v. State, 32
Tex. 109, it was said: "The stolen property' was, a month or more
after, found in a trunk, in a house occupied by the defendant and his
wife. The possession of the house with his wife was, in contemplation
of law, and for all civil purposes, the possession of the husband. But
in criminal acceptation, and for criminal accountability, it was the ac-
tual possession of each, and of both. So of the trunk, in which the
stolen goods were deposited or concealed. Either the husband or the
wife, then, may have acquired this stolen property, and thus deposited
or thus concealed them, and may have been the guilty taker or the
guilty receiver; and the other may have been totally ignorant of the
legal ownership, or the metliods of its acquisition"; and continuing,
the court said: "If the husl)auil liad been the sole possessor of both
house aud trunk, the inference of guilt would not only have becu
logitiniate and proper, but it would have been stringent and irre-
bistible, unless he gave a full and satisfactory account of the moans
of that possession. But the application of this rule of law to tiie
facts of this case brings it in conflict with a superior and paramount
rule of evidence, suggested by the essential principles of natural jus-
tice and wisely adopted as a necessary safeguard of the life and lib-
erty of the citizen. This rule of evidence is, that in all trials for
felony, involving the liberty or the life of a party, the circumstancea
to show the guilt of the party cliarged must be of a conclusive nature
Feb. 1904.] State v. Drew. 517
and tendency." A somewhat opposite view was expressed in Statu
V. Johnson, 60 N. C. 235, 86 Am. Dec. 434, which was a case wherein
the stolen property was found in a house occupied solely by the de-
fendant and his wife. The court said: "The sense of the term 'pos-
session' in this connection is not necessarily limited to custody about
the person. It may be of things elsewhere deposited, but under the
control of a party. It may be in a storeroom or barn when the party
has the key. In short, it may be in any place where it is manifest
it must have been put by the act of the party or his undoubted con-
currence: See State v. Williams, 2 Jones, 194, and cases referred to
in Waterman's Notes to 2 Archibald's Criminal Practice and Plead-
ings, 369.
"We think the case before us falls within the scope of the decided
cases, and that it is proper to hold one responsible as the possessor
of property when it is found in his dwelling-house under the circum-
stances stated in this case. It consists with reason, policy, and the
just rights of persons to hold as a legal presumption that the prop-
erty must have been put there by his act or by his concurrence."
In State v. Castor, 93 Mo. 242, 5 S. W. 906, the defendant was
employed on the farm of the complaining witness and resided with
him. He was accused of the larceny of a ring, some shirt-studs and
a pair of pants. The property was found in his trunk, the lock of
which could be opened by the cupboard key. The court, after detail-
ing the evidence, summarized the rule applicable in the following
language: "In the circumstances already detailed in evidence I can-
not regard the possession by the defendant of the articles alleged to
have been stolen as an exclusive possession, seeing that, by his permis-
sion, the prosecuting witness had access to his trunk, and on two oc-
casions, some time after the articles were missed, had opened it to get
the defendant's razor; seeing that also the defendant, in July, lent hus
key to Darius Webb, to get blacking and brush, which key remained
with the borrower some four days; seeing that also the trunk was
frequently left unlocked, and moreover could be unlocked and was
unlocked by the prosecuting witness with the cupboard key, and
could have been unlocked as easily by others familiar with the locus
in qiio. As already seen, if the defendant's possession was not an
exclusive one, there was no ground on which to base the presumjition
aforesaid. Lacking either of the three constituent elements, I have
mentioned, the presumption could not spring into being."
The admissiliility of such possession as a mere circumstance in con-
nection with other incriminating circumstances seems to be geuerallv
upheld. In Gilford v. State (Tex. Cr.), 78 S. W. 692, evidence of the
finding of stolen bacon at the house of defendant's father was ob-
jected to as not showing possession in defendant. The court said:
"But concede the premises belonged to the father of appellant, and
that appellant was not seen in posscss-'iou of the crib or the meat at
518 American State Eeports, Vol. 101. [Missouri,
his father's, still it would be admissible. The evidence shows that he
was seen at the smokehouse of Buekna the night before with the
sack; that the meat was taken out of the house; that he and the
parties who were seen near by went directly from the owner's smoke-
house to Arch Gilford's place, and the meat found, freshly covered
with fodder. Appellant lived at his father's, and was a boy be-
tween eighteen and nineteen years of age, and that was his home.
These facts were clearly admissible." In Kandolph v. State, 100
Ala. 139, 14 South. 792, evidence that part of the stolen property
was found thirteen months after in possession of the wife of the
accused, he being in jail on another charge, was held a matter for
the consideration of the jury, it also appearing that a search prior
to defendant's incarceration had disclosed none of the property.
In Fletcher v. State, 93 Ga. 180, 18 S. E. 555, the finding of a stolen
pair of pantaloons in the wife's trunk, the trunk being unlocked
by the husband, was held competent evidence. But in Sparks v.
State, IJ] Ga. 830, 35 S. E. 654, it was held that evidence showing
thut stolen goods were found in a house occupied by the mother of
a minor, and in which he resided as a member of her family, or in
the possession of his sister, did not warrant a charge based on the
hypothesis that he had individual and exclusive possession of the
stolen goods. In People v. Wilson, 151 N. Y. 403, 45 N. E. 8(52, it
was held that the fact that a stolen diamond found in a small purse
under a paper covering the bottom of a bureau drawer containing
men's clothing, showed a conscious and exclusive possession, although
the apartments were also occupied by two women. Part of the
jewelry in this case was also found on an associate of the defendant.
And in Medicus v. State (Tex. Or.), 22 S. W. 878, evidence that stolon
goods were found in the trunk of defendant's wife who was living
with him at the time of the burglary at which the goods were stolen
was held admissible though discovered after defendant's arrest.
And in Gass v. State (Tex. Cr.), 5G S. W. 73, it was held in a bur-
glary prosecution that evidence that the stolen goods were found in
defendant's sleeping-room was admissible as tending to show pos-
session by him.
V. Effect of Possession of Part of Property or Possession by an
Associate.
a. Possession of Only Part of the Stolen Property. — In Hill v.
State, 41 Tex. 25(j, the court said: "The rule is laid down both 1)y
elementary writers and in the reports, that the jury may infer the
stealing of the whole from the possession of part"; citing 1 Phil.
Ev., €. & n. 's notes, 482, 496; Burrill on Circumstantial Evidence,
454; Commonwealth v. Fugate, 1 T. B. Mon. 1; Commonwealth v.
Montgomery. 11 Met. 534, 45 Am. Dec. 227; State v. Jenkins, 2 Tyler
(Vt.), 377; Colton'a Case, 4 City Hall Eec. (N. Y.) 139. In a later
Feb. 1904.] State v. Drew. 519
case in Texas, the court in Gonzales v. State, 18 Tex. App. 449, in dis-
cussing an instruction on the subject, said: "We think that portion
of the above instructions, which informs the jury that they may
infer the guilt of the defendant of the theft of all the trousers from
the fact of his unexplained recent possession of one pair of the same,
is a charge upon the weight of evidence, and an invasion of the ex-
clusive province of the jury. It is not for the court to tell the jury
what inferences they may draw from facts proved, except in certain
specified instances in which the law has expressly established cer-
tain conclusions or presumptions as arising from a certain state of
facts. In the instance before us, the law does not establish the in-
ference which the court instructed the jury they might adopt. Such
an inference is one of fact and is not a presumption of law. It
would not always be a proper inference of fact even. There
might be circumstances which would preclude such an inference.
Some other person than the defendant may at the same time and
place and without complicity with the defendant have stolen all but
the two pairs of trousers which were found in defendant's possession.
"It would have been proper for the court to have instructed the jury
that, if they found from the evidence that the eighteen pairs of
trousers were stolen at the same time and place from the same per-
son; and if they found from the evidence that the defendant was
guilty of the theft of one or two pairs of said trousers, the fact that
all of said trousers were stolen at the same time and place would
be a circumstance which might be considered by the jury in deter-
mining defendant's guilt of the theft of all the trousers. But the
court went beyond this, and told the jury that the fact above stated
warranted the inference that the defendant stole all the trousers.
This, in effect, was stating to the jury that, if the defendant stole
a part of the property, it having all been stolen at the same time
and place, the law would infer that he stole the whole of it." In
Binyon v. State (Tex. Cr.), 56 S. W. 339, a conviction was sustained
on proof of possession of part and a statement by the possessor where
more was to be found, though the possession was attempted to be
explained. A conviction of burglary was sustained in State v. Jen-
nings, 79 Iowa, 513, 44 N. W. 799, though only a part of the re-
volvers, cartridges, razors and knives were found in possession of the
accused, but a part of the balance was found concealed near a straw
pile where a codefendant had been lyinc;. And in State v. Hullen,
133 N. C. C56, 45 S. E. 513, evidence that defendant had a pocket-
book which was among the articles stolen was held admissible as
tending to connect defendant with the burglary at which all the
articles were stolen. In Dawson v. State, 32 Tex. Cr. 535 40 Am. St.
Eep, 791, 25 S. W. 21, on a trial for burglary of freight-cars, proof
that articles which were missing from a certain ear were afterward
found in the possession of the accused was held admissible as tending
to show that the articles were taken from that certain car. In State
^>20 American State Eeports, Vol. 101. [Missouri,
V. Blue, 136 Mo. 41, 37 S. W. 796, the court laid down the broad
rule that the recent possession of any part of stolen property raises
a presumption of the possessor's guilt and casts upon him the bur-
den of explaining his possession.
b. Possession by Codefendant or an Associate.— Where a conspi-
racy to commit a larceny, burglary or robbery is shown, evidence of
part of the stolen property being in possession of an associate of the
accused or of one of the persons charged with being a co-conspirator,
is admissible as a circumstance tending to show the guilt of the ac-
cused: Jackson v. State, 28 Tex. App. 143, 12 S. W. 701. McAnally
V. State (Tex. Cr.), 73 S. W. 404; Murphy v. State, 86 Wis. 626, 57
N. W. 361; Mass v. State (Tex. Or.), 81 S. W. 46. In Branson v.
Commonwealth, 92 Ky. 330, 17 S. W. 1019, it was held that where the
evidence shows association during the night of the burglary and part
of the burglarized goods were found on the defendant on trial, the
fact that the balance of the property was found on a codefendant
was admissible. And it was held in People v. Whitson, 43 Mich. 419^
5 N. W. 454, in a robbery case that where there was evidence show-
ing that the parties acted in concert, that the possession of part of
the stolen property by a codefendant was competent. So, also, in
State V. Harrison, 06 Vt. 523, 44 Am. St. Eep. 864, 29 Atl. 807, evi-
dence that part of the stolen property was found on two codefendants
who had pleaded guilty, and part on the defendant on trial was
held admissible. And in Norsworthy v. State (Tex. Cr.), 77 S. W.
803, evidence of possession of a calfskin by a person whom the evi-
dence connected in the theft of the calf was held admissible.
So in Frazier v. State, 135 Ind. 38, 34 N. E. 817, it was held that
evidence that stolen property was found on a person who was an
associate of defendant both before and after the crime, was admis-
sible as a circumstance. And in State v. Ponnyman, 68 Iowa, 216,
26 N. W. 82, the finding of a stolen horse in possession of a boy,
who wap riding it, while traveling with the defendant, the boy hav-
ing also been traveling with him the day before the horse was stolen,
was held "a strong criminating circumstance tending to show the
guilt of defendant." And in a hog theft case, it was held in Jack-
son V. State, 118 Ga. 780, 45 S. E. 604, that the fact that some of the
hog meat was found in the possession of the father of defendant
was adniissiV)le in connection with evidence that other portions were
found in possession of the defendant.
VI. Nature and Effect of Expl-ina'icn.
a. What Amounts to an Explanation.— What amounts to such an
explanation of the possession of stolen property as will rebut the
probative force of the possession must necessarily depend upon the
circumstances of each cr.se. In Williams v. State. 40 Fla. -180 74 Am
St. Eep. 154, 25 South. 143, it was held that the presumption of guilt
was overcOiTie by a reasonable and credible explanation. And la
Feb. 1904.] State v. Drew. 621
Thompson v. State (Tex. Cr.), 78 S. W. 941, it was said that where
the explanation given by the accused is reasonable and probably
true and is consistent with innocence, the jury must consider the
explanation as true. In Henderson v. State, 70 Ala. 23, 45 Am. Eep.
72, the defendant sought to show that he was in another state at the
time of the burglary at which the valise found in his possession was
stolen; and that when he returned to his home and found the stolen
valise in his house, he asked his wife in the presence of the witness,
"Whose valise is that, and how came it here?" The court in
holding that the evidence was proper as tending to explain his pos-
session, said: "The rule is well established that the recent exclusive
possession of the fruits of crime, soon after its commission, is prima
facie evidence of guilty possession: 1 Greenleaf on Evidence, sec, 34.
Yet if the party, at the time he is found in possession of the stolen
property, and before he has had the opportunity to concoct evidence
exculpatory of himself, give a reasonable and probable account of
the manner in which he became possessed of the property, thig evi-
dence should always be allowed to go to the jury, so as to rebut the
presumption of guilt which might otherwise arise." In Eoberts v.
State, 33 Tex. Cr. Eep. 83, 24 S. W. 895, it was held that on a trial for
theft from the person, the same rules as to the explanation of recent
possession of the stolen property apply as apply to ordinary theft
cases. As illustrating instances in which the court held the explana-
tion not entitled to credence, see State v. Swift, 120 Iowa, 8, 94
N. W. 269, which was a prosecution for the burglary of a keg of
beer; the court held that an explanation to the effect that a tall and
a short man had invited defendant to drink from the keg and
then left him in possession of the keg was not entitled to credence.
And Magee v. People, 139 111. 138, 28 N. E. 1077, where it was held
that the fact that defendant had sold a watch valued at eight dol-
lars for one dollar and twenty-five cents on the day of the burglary,
after having bought it, as he claimed, for one dollar, tended to show
a want of good faith in the defendant in its purchase. For other
instances where explanations wore held insufficient; People v. Nico-
losi (Cal.), 34 Pac. 824; Duckett v. State, 65 Ga. 369; Ford v. State,
92 Ga. 459, 17 S. E. 607; Moore v. Commonwealth (Ky.), 14 S- W.
278; People v. Hawksley, 82 Mich. 71, 45 N. W. 1123; Allen v. State
(Tex. Cr.), 24 S. W. 30.
Explanations were hold sufficient to acquit th? defendnnt in State
V. Marqunrdseii, 7 Idaho, 352, 62 Pac. 1034; McMahon v. People 120
111. 581, n N. E. 883; State v. Deyoe, 97 I:.wa, 744, 6'! S W. '733;
State V. Miller, 10 Minn. 313 (Gil. 246); Harsdorf v. State (Tex.
App.), 18 S. W. 415; Green v. State (Tex. App.), 18 S. W. 651; Fore-
sythe V. State (Tex. Cr.), 20 S. W. 371; Coleman v. State (Tex. Cr.),
22 S. W. 41; Woods v. State (Tex. Cr.), 24 S. W. 99; Gilleland v.
State, 24 Tex. App. 524, 7 S. W. 241; Bean v. State, 24 Tex. App. 11,
5 S. W. 525; Tarin v. State, 25 Tex. App. 300, 8 S. W. 473; Cudd v.
522 AiiERicAN State Eeports, Vol. 101. [Missouri,
State, 25 Tex. App. 666, 8 S. W. 814; Arispe v. State, 26 Tex. App.
581, 10 S. W. Ill; Green v. State, 27 Tex. 570, 11 S. W. 636.
b. Effect of Explanation Showing Wrongful or Dishonest Posses-
sion.— The fact that the explanation given by the possessor of stolen
goods may tend to show his guilt of some crime other than the one
for which he is being tried does not detract from the force cf t'.ie
explanation in rebutting the inferences to be drawn from the fact
of possession. Thus, in State v. Brady, 121 Iowa, 561, 97 N. W. 62,
it was said: "So far as the accused was required to explain his pos-
session in order to avoid the inference of guilt, it was only necessary
for him to show that he obtained it by some means not connected
with the particular crime charged in the indictment; and such ex-
planation, if believed by the jury, was sufficient to acquit him, al-
though it may tend to show him guilty of some other crime." So,
also, in Cornwall v. State, 91 Ga, 277, 18 S. E. 154, it was said: "It
is never incumbent on the accused to show that he obtained stolen
articles honestly and legally. A guilty mode of acquiring them will
be as effectual as an innocent one. Their acquisition by any means
whatever other than by participating in the offense involved in the
trial will be a sufficient accounting for the possession to neutralize
the effect of that possession as evidence tending to prove guilt": See,
also, State v. Brady (Iowa), 91 N. W. 801; State v. Swift, 120 Iowa,
8, 94 N. W. 269, to the same effect. People v. Fagan, 98 Cal. 230, 33
Pac. 60, was an instance where the explanation was held sufficient
as to the crime of larceny, though it indicated that the accused was
guilty of knowingly receiving stolen property. In State v. Dillon,
48 La Ann. 1365, 20 South. 913, defendant was found in possession
of a skiff, the larceny of which he was charged with, the court held
that it was competent for him to ex])lain his possession by evidence
that he had taken it to escape arrest on a robbery charge and had
taken a friend along who was to return the skiff. See, also, Considine
V. United States, 112 Fed. 348, as bearing on the subject.
c. Effect of Explanation Raising Reasonable Doubt.— In Bellajny
V. State, 35 Fla. 245, 17 South. 500, the court said: "The explanation
given by the possessor of stolen goods may fall short of satisfying
the jury, and yet it may bo sufficient to raise a reasonable doubt ia
their minds and if it does raise such a doubt then it is sufficient to
acquit him of the charge of larceny unless the prosecution overcomes
it by proof that the explanation is false": Citing Blaker v. State, 130
Ind. 203, 29 N. E. 1077, See, also. Van Straaten v. People, 26 Colo.
3 84, 56 Pac. 905; Sahlinger v. People, 102 111. 241; State v. Miner,
107 Iowa, 656, 78 N. W. 679; State v. Brundige, 118 Iowa, 97, 91 N.
W. 920. So, also, it has been stated that where, after defendant 's
explanation of his possession, the jury have a reasonable doubt
growing out of any part of the evidence, they should acquit the ac-
cused: Hale V. State, 122 Ala, 85, 26 South.- 236; Greutzinger v.
Feb. 1904.] State v. Drew. 523
State, 31 Neb. 460, 48 N. W, 148. In State v. Lax (N. J. Sup.),
59 Atl. 18, it was held that if a reasonable doubt is raised, even by
inconclusive evidence, of the innocent possession of stolen property,
the defendant is entitled to the benefit of the doubt. It was held in
Hyatt v. State, 32 Tex. Cr. 580, 25 S. W. 291, that when the defend-
ant gives a reasonable explanation and one which is probably true and
the state fails to establish its falsity beyond a reasonable doubt, the
accused must b© acquitted, and in State v. Seymour, 7 Idaho, 257,
€1 Pac. 1033, it was held that the jury cannot arbitrarily ignore a
reasonable explanation of defendant's possession, where he is not
impeached and there is no conflict of evidence. So, also, in Powell
V. State, 11 Tex. App. 401, it was held that where defendant claimed
to be in possession of the alleged stolen goods by consent of the own-
er's agent, and the state failed to call the agent to refute his explan-
ation, though he was accessible, the conviction would be reversed.
In State v. Carr (Del.), 57 Atl. 370, the court said: "Whenever a
- reasonable explanation or account of the possession is satisfactorily
proven by the prisoner, it is incumbent upon the state to show that
such an account is false." It was, however, held in State v. Moore,
101 Mo. 316, 14 S. W. 182, that defendant's explanation did not en-
title him to an acquittal because it fairly accounted for the fact
of his possession,
d. Effect of False Explanation. — In Armstrong v. State (Tex.
Cr.), 50 S. W. 346, it was held that the mere fact that defendant's
explanation of his possession of stolen property is false is not suffi-
cient to authorize a conviction, since a defendant is not tried alone
on the falsity of any explanation which he may make with reference
to his possession of such property, though such false explanation may
be an important circumstance against him. He is tried on the whole
case made by the state. In a later case in that same state the court,
in Thompson v. State (Tex. Cr.), 78 S. W. 941, held that the court
properly refused to charge that the state could only insist on a con-
viction in case it had shown that the explanation given by the ac-
cused was false, since it would have been on the weight of the tes-
timony, but that it was proper to charge that the jury could convict
if they believed the explanation given to be false. The question
was also discussed in Eay v. State (Tex. Cr.), 43 S. W. 77. In Scott
V. State, 119 Ga. 425, 46 S. E. 637, it was held that recent possession
together with a false statement as to the person from whom the
stolen property was obtained, made out a prima facie case of lar-
ceny. A similar holding was made in Wynn v. State, 81 Ga. 744,
7 s! E. 689. And in Franklin v. State, 37 Tex. Cr. 312, 39 S. W. 6S0,
it was held that the state could show that the explanation as to the
possession of stolen property was false by circumstantial evidence.
VII. Province of Court and Jury.
The province of the court and jury has been treated in an incidental
manner in discussing the various phases of the subject. The question
5^4 American State Reports, Vol. 101. [Missouri,.
■whether unexplained possession of stolen property raises an inference
of guilt or is sufficient to establish the guilt of the possessor is for
the jury: People v. Hannon, 85 Cal. 374, 24 Pac. 70(3; Lundy v. State,
71 Ga. 360; State v. Walker, 41 Iowa, 217; Hunter v. Commonwealth,
20 Ky. Law Rep. 1165, 48 S. W. 1077; Commonwealth v. McGorty,
114 Mass. 299; State v. Hoshaw, 89 Minn. 307, 94 N. W. 873; White-
man V. State, 42 Xeb. 841, 60 N. W. 1025; State v. Hodge, 50 N. H.
510; Methard v. State, 19 Ohio St. 363; Prince v. State, 44 Tex. 480;
Porterfield v. Commonwealth, 91 Va. 801, 22 S. E. 352; Ryan v. State,
83 Wis. 486, 53 N. W. 836. The question what time after the theft
is recent is also for the jury: Boyd v. State, 24 Tex. App. 570, 5 Am.
St. Rep. 90S, 6 S. W. 853; Willis v. State, 24 Tex. 586, 6 S. W. 857;
State V. Walters, 7 Wash. 246, 34 Pac. 938, 1098; State v. Eubank,
33 Wash. 293, 74 Pac. 378. The question whether the property found
in the possession of the accused is the stolen property is also for
the jury: State v. Griffin, 71 Iowa, 372, 32 N. W. 447; Branson v.
Commonwealth, 92 Ky. 330, 17 S. W. 1019; State v. Bruce, 106 N. C.
792, 11 S. E. 475. The effect to be given to the explanation given
of the acquisition of the stolen property is also a question for the
jury: York v. State, 42 Tex. Cr. 528, 01 S. W. 125; McCoy v. State
(Tex. Cr.), 81 S. W. 46. And in People v. Farrington, 140 Cal. 656,
74 Pac. 288, it was held that the demeanor of the accused when
found in possession of the stolen property or when he attempted to
explain was proper to be considered by the jury so far as disclosed
by the evidence.
DE GEOFEOY v. MERCHAXTS' BRIDGE TERMINAL.
RAILWAY COMPANY.
[179 Mo. 698, 79 S. W. 3S6.]
STREETS — Rights of Abutting Owners. — Tlie right of the
owner of a lot in a city or town to the use of the street and to dam-
ages for its obstruction does not depend on his ownership of any of
the soil under the street. His right flows from the fact that his lot
abuts on the public street, (p. 529.)
STREETS — Abutting Owners — Easement — Compensation. — A n
nl)uttin},' owner on a public street has an easement therein of light,
air, and access to and from his property by means of such street, of
which he cannot be deprived without compensation, (pp. 532, 530.)
STREETS — Surface Railroads in — New Servitude. — The con-
struction and maintenance of a steam or street railroad on the grade
of a street in pursuance of municipal authority, the municipal
corporation having power to grant it is not a new or additional ser-
vitude on the land upon which the street is constructed, and falls
within the use contemplated when the street was laid out or acquired
by the public, (p. 536.)
Feb. 1904.] De Geofroy v. Merchants' etc. Ry. Co. 525
STREETS — Elevated Railroads Therein— New Servitude,— An
elevated steam railroad, constructed on permanent pillars or arches
in a public street by consent of the municipality, so as to shut out
the light and air of abutting owners and interfere with the free
use of the street, and their access to and from their premises, is a
new and additional servitude, and one not in contemplation when the
street was acquired or laid out, and one which entitles them to just
compensation for any depreciation in the value of their property
caused by the construction and maintenance of such railroad, (p.
540.)
STREETS — New Servitude Therein — Limitation of Action. —
An action by abutting property owners on a public street to recover
for damages to their property caused by the construction of an ele-
vated railroad therein is barred by limitation in five years after such
construction has become permanent and complete, (p. 541.)
Sale & Sale and D. Goldsmith, for the appellants.
J. H. Overall, for the respondent.
''^^ GAXTT, J. This is an action by plaintiffs, who are
abutting owners of real estate on Front street, in the city of
•St. Louis, for damages to their said realty, occasioned by and
resulting from the construction and operation of an elevated
steam commercial railroad along and over said Front street in
front of plaintiffs' lots. In the circuit court a demurrer to the
petition was sustained on the ground that it did not state facts
sufficient to constitute a cause of action. The propriety of that
action by the circuit court presents the sole and only question
for our determination at this time.
Omitting caption, the plaintiffs allege that the defendant is
a railroad corporation, engaged as a common carrier, operating
a steam railroad with locomotives and cars at and in the city
of St. Louis. That plaintiffs are now, and for m.any years
have been, the owners in fee simple of a lot in city block 5,
fronting seventy-six feet on the west line of Wharf or Front
sfreet, in the city of St. Louis, with a depth of sevcnty-fue feet,
on which lot there were at all tlie times mentioned in the peti-
tion, and are now, erected three substantial four-story brick
buildings, known as numbers 203, 204 and 205 Soutli Levee or
Front street. That plaintiffs acquired tbe said lot and premises
prior to the year 1890, and have owned and occupied the same
by themselves and their tenants continuously since April, 1S90.
That said Front street, known as the Levee or Wbarf, is and
was for many years prior to the construction of rlefcndant's
said railway, as hereafter set out, a pul)lic street and biiiliuay
of the city of St. Louis, and held by said city in trust for the
maintenance thereof as pu'olic streets are generally used and
b2iS American State Reports, Vol. 101. [Missouri^
maintained ; that plaintiffs were and are seised of an easement
in said street and are entitled to have the same kept and used
a? a public highway, and to be protected from unusual and ex-
traordinary interferences with the light, air and access to and
use of their premises not occasioned by ordinary street uses;
that as an incident and ''**^ appurtenant to plaintiffs' owner-
ship of said premises, plaintiffs, at least until condemnation,
compensation, or purchase, have and had in said Front street
the right and easement to its free and unimpaired use, for the
uses and ordinary purposes of a public street or highway, and
to exemption from noise, smoke, soot, dust, cinders, obstruc-
tions and unusual impairment of the easements of light, air
and access and ingress and egress to and from said premises,
etc. That defendant's structure and the operation of its en-
gines and cars on said street in front of plaintiffs' premises are
of a permanent and continuous nature. The petition avers
that the railroad of the defendant was an elevated road, tlie
superstructure of which rested upon iron columns which were
erected perpendicularly to a height of from fifteen to twenty-
five feet above the surface of the street or sidewalk ; that these
columns supported cross-girders or frame work, upon which were
laid four single railroad tracks, or two double railroad track?
and that tlie railroad of the defendant has ever since the erec-
tion of the structure been, and still is, operated upon thch^e
tracks; and that the superstructure extends out on either side,
so that the western line thereof approaches the eastern or build-
ing line of plaintiffs' premises within twelve feet, more or less ;
that these structures are of a permanent nature, and are built
and intended by the defendant to be used permanently for the
transportation of freight and passengers; "that large num1)er3
of freight and passenger trains daily pass in front of plaintiffs'
premises, and produce a flickering and darkening of the light,
and deprive and have hitherto deprived plaintiffs of the bene-
cial use of such light as comes to said premises, and interferes
witli the air. ventilation and ac(-ess to said premises, and tlie
I'rivacy thereof; that said structure, as it now exists, and aa
aliove described, has been erected and maintained without legal
riglit. and is a special injury to plaintiffs and their premises;
that the operation of said railroad is not an ordinarv street use
of said '''*'•' street authorized by law; that on the road thus con-
structed the defendant every day ran, and still does run, many
trains of cars; that said railroad and structure greatly ob-
structed, and still do greatly obstruct, said premises and the
Feb. 1904.] De Geofroy v. Merchants' etc. Ey. Co. 527
passageway to and from said building; that they excluded, and
still do exclude, light and air from the same; that the trains
made and still do make, loud and disagreeable noises, caused,
and still do cause, vibrations of the buildings erected on said
premises, whereby the security of such buildings is greatly im-
paired and their strength lessened and injured, and still do in-
jure, said buildings, and said trains and said structures injure
and impair plaintiffs' easements of light, air and access; that
the value of the use and occupation of said premises has
thereby been greatly damaged."
The petition further avers that the aforesaid structure and
the railroad of the defendant impose a new and additional bur-
den on the property of the plaintiffs, and one which was not
within the power of the city of St. Louis to authorize without
compensating plaintiffs for their property thus taken and dam-
aged; that no compensation has ever been made for the afore-
said taking and damage of plaintiffs' property; that the rental
value of said property has been greatly damaged, to wit, to the
extent of two thousand five hundred dollars per annum, by the
construction and operation of defendant's railroad in said
street ; and that the property itself has been permanently dam-
aged in the sum of twenty-five thousand dollars. That the city
of St. Louis did heretofore, to wit, on July 9, 1887, adopt an
ordinance which undertook to authorize the construction of de-
fendant's railroad, and the use of the streets therefor, which
said ordinance is set forth in full in the petition, and which,
among other things, required the construction of said railroad
to be commenced within one year after the approval of the or-
dinance and to be completed within five years from February
3, LS87, and which said ordinance was subsequently amended
by another ordinance, approved ''**■* December 21, 1889; that
the defendant, with the view of availing itself of the provision
of said ordinance and claiming to act under the same, has con-
structed its road as aforesaid, and that the said ordinance is in
conflict with article 2, section 21, of tlie constitution of tliis
state, and also in conflict with article 2. section 30, of the con-
stitution of this state, and also in conflict with tlio fourteenth
amendment to the constitution of the United States ; "that
plaintifl's' property has been taken and damaged for tlie uses
cf defendant's railroad, as herein set out, without just compen-
sation; that plaintiffs have been deprived of their property by
the defendant without due process of law"; and tliat the con-
struction of the railroad of the defendant Avas completed in
528 American State Keports^ Vol. 101. [Missouri,
May, 1890, and the railroad has been operated ever since that
time; and that the operation of tlie road will continue, unless
restrained by order of this court.
The petition then prays that the damages of the plaintiffs
may be ascertained and determined, and that they may have
Judgment therefor, to wit, for the sum of twenty-five thousand
dollars; also, that the defendant may be enjoined from further
obstructing and encumbering the aforesaid street, and also from
maintaining, continuing or operating its railroad and structure
in front of the premises of the plaintiffs, and further be re-
quired to remove said structure in front of plaintiff's property,
unless, within such time as should be fixed by the court, the
defendant pays to plaintiffs a sum of money sufficient to com-
pensate the plaintiffs for their property taken and for the ]ior-
manent injury and damage done thereto by reason of the afore-
said acts of the defendant.
1. It is stated by counsel that the action of the trial court
in sustaining the demurrer to the petition of the plaintiffs was
predicated exclusively on the theory that the cause of action of
ihe plaintiffs was barred by the statute of limitations, in that
it appeared from the face of the petition that the action was
not instituted witliin five years after the completion of tb.e de-
fendant's railway, ''**^ but this is not disclosed in the record,
and we cannot take notice of the reasons which moved the cir-
cuit court to sustain the demurrer.
As said by Judge Andrews for the court of appeals of Xew
York, in Kaiie v. Now York etc. E. R. Co., 125 X. Y. 175, 2G X.
E. 278, n L. Pi. A. GIO: "Few questions have come ])efore tlie
courts in tliis generation of greater practical importance or in-
volving larger pecuniary interests than those growing out of
the construction of railways in city streets. Wbether such
streets may, under legislative and municipal autliority, be oc-
cupied by railroad tracks, to the inconvenience of abutting
ownors. wiibout making compensation, and what limitation, if
raiy. ilici'o is to t]io legislative power over streets which cannot
be iransLTrossed without violating the legal and constitutional
rights of lot owners are questions which have excited tbe grav-
est doliatc and liave been the subject of tlie most careful judicial
(on si deration."
Eorer on Eailroads. volume ], page 515, says that "as to the
rig:ht of a railroad to run along a public street without addi-
tional compensation, American aullioril ios difTcr so widolv lliat
Feb. 1904.] De Geofroy v. Merchants' etc. Ey. Co. 529
it is impossible to lay do-v\Ti any positive rule of law upon the
subject.''
A resume of the decisions of this court on this subject will
greatly aid us in arriving at a proper conclusion.
The easement of the plaintiffs in Front street is too firmly
established to admit of doubt.
In the case of Gaus & Sons Mfg. Co. v. St. Louis etc. E. E.
Co., 113 Mo. 315, 35 Am. St. Eep. 706, 20 S. W. 658, 18 L. E.
A. 339, McFarlane, J., says: "It must be conceded by the de-
fendant, because it is too well settled to admit of question,
that every owner of a lot abutting on a public street, besides
the ownership of the property itself, has rights appurtenant
thereto, which form a part of the estate. Those rights are said
to be 'as much property as the lot itself.' Of these may be
named an easement for the free admission of light and ''^^ pure
air; and the right of ingress and egress to and from his prop-
erty. 'Every lot owner has a "peculiar interest in the adja-
cent street, which neither tlie local nor the general public can
pretend to claim ; a private right in the nature of an incorporeal
hereditament, legally attached to his contiguous ground; an
incidental title to certain facilities and franchises," which is
in the nature of property, and which can no more be appro-
priated against his will than any tangible proprety of which
he may be the owner.' Depriving the owners of these incor-
poreal hereditaments, or interfering with their full enjoyment,
by appropriating the street to a new and different public use
from that originally contemplated, would undoubtedly be a
■damage within the foregoing constitutional provision
"We think a public use which would interfere with these incor-
poreal rights, whereby the property was depreciated in value
would be a damage to the property within the meaning of the
constitution, and would entitle the owner to compensation.''
To the same effect: Knapp, Stout & Co. v. Transfer Ey. Co.,
126 ^\o. 35, 28 S. W. 627; Sherlock v. Kansas City etc. Ey.
Co., 142 Mo. 182, 64 Am. St. Eep. 551. 43 S. W. 629; Egeror
V. New York Cent. E. E. Co., 130 N". Y. 108, 29 N". E. 95, 14
L. E. A. 381; Sperb v. Metropolitan etc. Ey. Co., 137 X. Y.
155, 32 X. E. 1050, 20 L. E. A. 752.
In some of the states the right of the abutting owner to com-
pensation by reason of the construction of a steam railroad in
front of his premises has been made to depend upon whether
the fee in the street was located in the municipality, or the
Am. St. Rep. Vol. 101—34
530 American State Reports^ Vol. 101. [Missouri^
abutting owners, but in this state tlie right of the owner of a
lot in a city or town to the use of the street and to damages
for its obstruction does not depend on his ownership of any of
the soil under the street. His right flows from the fact that
his lot abuts on a public highway : Lackland v. North Missouri
R. R. Co., 31 Mo. 187.
At an early day in the judicial history of this state it was
ruled that the laying of tracks and the operation of a steam
railroad on the grade of a public street or "^^"^ highway did not
constitute a new or additional servitude, and did not warrant
compensation for damages resulting to the owners of abutting
property. While this is true, as was said by this court in
Knapp, Stout & Co. v. Transfer Ry. Co., 126 Mo. 36, 28 S. \V.
627, it was a modified rule," "a rule that has been hedged about
with many qualifications."
Thus in the very first case (Lackland v. North Missouri R.
R. Co., 31 Mo. 188) it was said: "We have not observed any
case, even where this power is conceded, which allows the erec-
tion of depots, or car buildings, or any other structures, which
materially obstruct the use of the street or highway as a public
easement."
In that case it appeared that the company built a sidetrack
along the main track in the street fronting the plaintiff's lot
and a switch track connecting the two others ; that these tracks
rested on embankments which of themselves entirely obstructed
all passage of vehicles over any part of the street. In addition
to the three tracks, two switch frames and a cattle-way had
also been erected. The sidetrack was used for a standing place
of freight and passenger cars. In short, the street was used
as a depot yard. Judge Napton, in the course of the opinion,
referred to the decision of the supreme court of Pennsylvania
in Commonwealth v. Erie etc. R. R. Co., 27 Pa. St. 351, 67 Am.
Dec. 471 (a court which has maintained at all times the absolute
control of the state over all its highways), wherein it was ruled
that a grant of right of way over and along streets, highways,
etc., but with the restriction "not to obstruct or impede their
free use," did not authorize the company to place any material
obstructions in the streets or highways, and any change of
grade, unless the road or street was adapted to the new grade
at the expense of the company, was unauthorized, and this
court in said Lackland case affirmed a judgment for damages
growing out of the said acts of tlie railway company.
Feb. 1904.] De Geofroy v. Merchants' etc. Ry. Co. 531
In Porter v. Xorth Missouri E. E. Co., 33 Mo. 128, the opin-
ion proceeded "^^^ on the ground that the plaintiff's access to
his property was not affected by the construction of the road
at grade.
In Tate v. M. K. & T. E. E. Co., 64 Mo. 149, the Porter
case came under review, and it was held that the principles an-
nounced therein only applied to a railroad constructed on the
grade of the street where the only obstruction is the passage of
trains, and not where embankments have been made above the
grade, or where the street is used for sidetracks or other struc-
tures for the convenience of the railroad, and accordingly in
the Tate case damages were allowed the abutting owner where
the railroad company built an embankment in the street in
front of the plaintiff's lot. To the same effect is Swenson v.
City of Lexington, 69 Mo. 166; Cross v. St. Louis etc. Ry. Co.,
77 Mo. 322; Smith v. Kansas City etc. Ry. Co., 98 ]\Io. 24, 11
S. W. 259 ; Dubach v. Hannibal etc. E. R. Co., 89 Mo. 488, 1
S. W. 86.
In Schopp V. City of St. Louis, 117 Mo. 131, 22 S. W. 898,
20 L. R. A. 783, this court held that an abutting owner on a
street has equal right with the public to use the street, and in
addition thereto, he has certain rights which are special to him-
self, e. g., that of ingress and egress, and that the city has no
power to lease spaces on a street in front of a business house
for produce dealers. Judge Black for the court, speaking of
the building of market-houses in the streets of a city, quotes
Judge Dillon to the effect that "they are nuisances when built
upon the streets, although sufficient space be left for the pas-
sage of vehicles and persons" (Dillon on Municipal Corpora-
tions, 4th ed., sec. 383), and says: "The public highways be-
long, from side to side and end to end, to the public"; and
"The public are entitled, not only to a free passage along the
highway, but to a free passage along any portion of it, not in
the actual use of some other traveler, .... and the abutting
property owner has the right to the free and unobstructed passage
to and from his property."
In Lockwood v. Wabash Ry. Co., 122 Mo. 86, 43 Am. St.
Rep. 547, 26 S. W. 698, 24 L. R. A. 516, it was pointed
"^ out that section 2543 of the Revised Statutes of 1889, now
section 1035 of the Revised Statutes of 1899, provides that
when a railroad builds its tracks in a public street bv permission
of the city authorities it must restore the street to its former
533 American State Reports, Vol. 101. [Missouri,
state, or to such a state as not necessarily to impair its useful-
ness, and that the mayor and assembly of the city are restricted
in their grant by the constitution and laws of the state.
In that ease, wliile tlie court felt constrained by the un-
broken line of decisions to the effect that a city in this state
may permit and authorize by ordinance the laying of a railroad
track at grade along its streets, it held that this was not an un-
qualified power, and consequently ruled that while the railro^id
was laid at grade, yet owing to the narrowness of the street and
the width of the tracks, the use of the street by the railroad
company amounted to a monopoly and exclusive use of the
street by the company to the denial of the rights of the abutting
owners, and was in effect a taking and damaging their prop-
erty without compensation, and accordingly affirmed the de-
cree of the circuit court perpetually restraining the company
from operating its cars and locomotives on said street.
In Knapp, Stout & Co. v. Transfer Ey. Co., 126 Mo. 37, 28
S. W. G27, the Lockwood case was approved, and this court,
after reviewing all the above cases perpetually enjoined the de-
fendant railroad company from operating a switch track in
Hall street in St. Louis in front of plaintiff's property and on
what would have been the west sidewalk had one been con-
structed. Judge Black, speaking for this court, said : "Taking
those cases all in all, it is very clear a municipal corporation
has no power to grant to a railroad company such use of a street
as will destroy its usefiihiess as a public thoroughfare, or de-
stroy or unreasonably interfere with the right of an abutting
I)ro])erty holder to access to and from his pro))erty.''
'^^ The petition in the present case presents sharply for the
first time in this court the rights of an abutting owner to com-
pensation for the new and additional servitude to which a
street in front of his property has been subjected by the con-
struction and operation of an elevated railroad thereon on a
permanent structure, such as is described in plaintiff's petition.
Starting with the un(|uestioncd easement whieli tlie plain-
tiffs have to light and air and access to and from their buihl-
ings and the adjudications of this court already reviewed can it
be said tliat the proposition is stare decisis and that plaintiffs
are precluded from recovering compensation because the de-
fendant's railroad is not a new or additional servitude? Our
opinion is tiiat tbere is notliing in our decisions up to this time
tbat precludes a recovery and tbe point is before us for adju-
dication in the light of reason and the analogies of the law.
Feb. 1904.] De Geofroy v. Merchants' etc. Ry. Co. 533
The question is not a new one in our sister states. Thus in
New York the question arose in Story v. New York etc. Ry.
Co., 90 N. Y. 122, 43 Am. Rep. 146. "The case is notable, not
only on account of the question involved and the thoroughness
with which it was considered but the ability of the counsel who
argued it. In that case the trial court found that "the struc-
ture of elevated railroad in that case would to some extent ob-
scure the light of the abutting premises ; that the passing trains
would do this also and would impair the usefulness of the plain-
tiff's premises; that the line of columns abridges the sidewalks
and interferes with the street as a thoroughfare where such
columns are located; that the fronts of the buildings will be
exposed to observation from passengers in passing trains and
their privacy invaded and these things will be of a continuing
character.'^ We quote this finding because it is practically the
very things of which plaintiffs in this case complain. Dan-
fcrth, J., who delivered the majority opinion, assumed as the
basis of his opinion that the fee to the street was in the city,
and ''^^ thus, in this respect, the opinion is in harmony with
our own on this subject, viz., that irrespective of the title in
the street, the abutter had the easement of air and light and
access to and from the street until by legal process and upon
just compensation, it was taken from him. While conceding
tliat a railroad on grade was not a new servitude, the court said :
'■'Can the street be lawfully appropriated to such a structure
(as this) without making compensation to the plaintiff for his
easement therein? This is a question of power. If the leg-
islature has power to authorize such a structure, without com-
pensation, its exercise cannot be regulated by the courts. If
one road may be authorized to be constructed upon two series of
iron columns placed in the street, another may be authorized
to be supported upon brick columns, or upon brick arches span-
ning the street. If a superstructure may be authorized wliich
spans the entire carriage-way at fifteen feet above the bod of
tlie street, one may be authorized which spans the entire street,
from building to l)uilcling. thus excluding light and air from
the street and from the property abutting thereon. Tbus an
open street would be converted into a covered way. and so filled
with columns or other permanent structures as to be practically
impassable for vehicles." Traeey, J., concurring, further said :
"The argument has been pressed upon our attention witli great
ability that as railroads, like streets, are intended to facilitate
534 American State Eeports, Vol. 101. [Missouri,
trade and commerce, and lands taken for either are taken for
public use, the legislature may, in its discretion, appropriate
the public streets of our cities to the use of railroad corpora-
tions, and this without reference to the form of their structure
or the extent of the injury wrought upon property abutting
thereon. This is a startling proposition, and one well calcu-
lated to fill the owners of such property with alarm. It can-
not be that the vast property abutting on the streets of our great
cities is held by so feeble a tenure. This court has repeatedly
held that such a rule has no application ''^^ where the abutting
owner owns the fee of the bed of the street; and we are of
opinion that in cases where the pul)lic has taken tlie fee, but
in trust to be used as a public street, no structure upon the
street can be authorized that is inconsistent with the continued
use of the same as an open public street. The obligation to
preserve it as an open street rests in contract written in tlic
statute under which the lands were taken and which may not
be violated by the exorcise of any legislative discretion. What-
ever force the argument may have as applied to railroads ])nilt
upon the surface of the street, without change of grade, and
where the road is so constructed that the public is not excluded
from any part of the street, it has no force when applied to a
structure like that authorized in the present case. The answer
to the argument is that lands taken for a particular public use
cannot be appropriated to a different use without further com-
pensation; that the authoritv attempted to be conferred by the
legi^latare iipon the defendant to take exclusive possession of
portions of the public street, and to erect a series of iron col-
umns on either side thereof, upon which a superstructure is to
be erected spanning the street and filling the roadway at fifteen
feet above the surface, thus excluding light and air from the
adjoining premises, is an attem])t to apj)ropriate the street to
a use essentially inconsistent with that of a public street, and
in respect to the land in (juestion violates the covenant of tlie
city made with the plaintiffs' grantors, and in respect to lands
acquired under the act of 1813 violates the trust for which siuh
lands are held for public use." The conclusion was that an
abutting owner had an easement in the street which constitutes
private property of which he cannot he deprived without com-
]:(>nsation; that such a structure as that described in plaintid'.-'
petition is inconsistent with the use of Front street as a public
street; tliat the plaintitf was entitled to an injunction until
compensation had been paid tlierefor.
Peb. 1904.] De Geofroy v. Meechants' etc. E,y. Co. 535
''^ In Lahr v. Metropolitan etc. Ey. Co., 104 N. Y. 288,
10 N. E. 528, the court of appeals expressed the opinion that
the defense had been conducted with a view to have the Story
case overruled or limited. The court reaffirmed the Story case,
and deduced therefrom the following principles : "We hold that
the Story case has definitely determined:
"1. That an elevated railroad in the streets of a city, and
operated by steam power, and constructed as to form, equipment
and dimensions, like that described in the Story case, is a per-
"\orsion of the use of the street from the purposes originally
designed for it, and is a use which neither the city authorities
nor the legislature can legalize or sanction, without providing
compensation for the injury inflicted upon the property of
abutting owners.
"2. That the abutters upon a public street .... acquire an
easement in the bed of the street for ingress and egress to and
from their premises, and also for the free and uninterrupted
passage and circulation of light and air through and over such
street, for the benefit of property situated thereon.
"3. That the ownership of such easement is an interest in
real estate constituting property within the meaning of that
term, as used in the constitution of the state, and requires com-
pensation to be made therefor, before it can lawfully be taken
from its owner for a public use.
"4. That the erection of an elevated railroad, the use of which
is intended to be permanent, in a public street, and upon which
cars are propelled by steam-engines generating gas, steam and
smoke, and distributing in tlie air cinders, dust, ashes and other
noxious and deleterious substances, and interrupting the free
passage of light and air from adjoining premises, constitutes a
taking of the easement, and its approjiriation by the railroad
corporation, rendering it liable to the abutters for the damages
occasioned by such taking.'^
In Sheehy v. Kansas City etc. Ey. Co., 94 Mo. 574, 4 Am. St.
Eep. 396, 7 S. W. 579, this court expressly '^^^ approved the
decision in Story v. Xew York etc. Ey. Co., 90 N". Y. 122, 43
Am. Eep. 146, saying that ''a railroad company which had the
riglit conferred on it to alter the grade of the street for the pur-
pose of constructing its road, would also be liable to an a])utting
property owner for damages to his property by reason of such
alteration. In such case the privilege granted the railroad
'would be yoked with a liability.' That tlie o^^aier of property
abutting in a street has such an easement therein as would sup-
536 American State Reports, Vol. 101. [Missouri,
port an action for damages peculiar to him is sustained by the
following cases: Lackland v. North Missouri Ey. Co., 31 Mo.
180; Story v. New York etc. Ry. Co., 90 N. Y. 122, 43 Am.
Eep. 146."
In Doane v. Railroad, 165 111. 510, 56 Am. St. Rep. 265, 46
N. E. 520, 36 L. R. A. 97, while denying a remedy by injunction
on the ground that the city of Chicago was the owner of the
fee in its streets and was empowered to permit the railroad com-
pany to build an elevated street railway therein, the decision
throughout recognizes the right of an abutting owner to damages
at law, and because he had a complete legal remedy for the dam-
ages resulting to him as an abutting owner, relief in equity wa?
denied.
In Rude v. City of St. Louis, 93 Mo. 413, 6 S. W. 258, this
court, after reviewing the prior cases in this court on the ques-
tion, said: ''These cases recognize the right of a railroad com-
pany to lay down and use its tracks upon a street, when that
right is conferred upon it by the municipality, the municipality
having the power delegated to it to grant that right; still the
track must be laid upon the grade of the street and the railroad
so used as not to unreasonably deprive the owner of the prop-
erty of the use of the street."
From these cases we deduce the following propositions:
1. The owner of propertv abutting on a public street or high-
way in this state has an easement in such street of air, light
and access to and from his property by said street, whether the
fee to the same is in the municipality or the abutting owners,
and this easement is property ''^^ of which he cannot be de-
prived without just compensation.
2. That the construction and maintenance of a steam or
street railroad on the grade of such street in pursuance of
municipal authority, the municipal corporation having power
to grant it, is not a new or additional servitude on the land upon
which the street is constructed, l)ut falls within the use contem-
plated when the street was laid out or acquired by the public:
Porter v. Xorth :Missouri Ry. Co., 33 :Mo. 137.
3. Tliat the power of a city or otlicr municipal corporation
in ^lissduri to authorize the gonstruction of railroads in the
juiblic streets is "a modified right, a right hedged about with
many qualilieations"; that it does not include the right to
grant a railroad the exclusive use of the surface of a stre<it
even when laid at L^rade: Lockwond v. Wabash Ry. Co., 122 ^lQ.
86, 43 Am. St. Rep. 547, 26 S. W. G98, 24 L. R. A. 516;
Feb. 1904.] De Geofroy v. Merchants' etc. Ry. Co. 537
Sherlock v. Kansas City etc. Ey. Co., 142 Mo. 172, 64 Am. St.
Eep. 551, 43 S. W. 629; Knapp, Stout & Co. v. Transfer Ry.
Co., 126 Mo. 26, 28 S. W. 627; Lumber Co. v. St. Louis etc. Ry.
Co., 129 Mo. 455, 31 S. W. 796; Corby v. Chicago etc. Ry. Co.,
150 Mo. 457, 52 S. W. 281. Neither can the municipal author-
ity grant the power to a railroad company of such use of a street
as will destroy or unreasonably interfere with the right of an
abutting property holder of access to or egress from his prop-
erty or deprive him of his easement of light and air from the
street. The street on which a railroad is constructed on the
grade cannot be used for sidetracks, the storing of cars, for
water-tanks or like structures : Lackland v. North Missouri Ry.
Co., 31 Mo. 188; Tate v. M. K. & T. R. R. Co., 64 Mo. 149;
Spencer v. Metropolitan Ry. Co., 120 Mo. 154, 23 S. W. 126, 22
L. R. A. 668.
4. That the right to construct a railroad in a public street
at grade by authority of municipal grant has been too long
acquiesced in and too many rights have been vested on the
faith of the decisions affirming such right to question such a
right to acquire on the faith of such adjudication.
5. That whether an elevated railroad, constructed on per-
manent pillars or arches in the street so ''^^ to shut out the
light and air of abutting owners and interfere with the free
use of the street and their access to and from their premises,
is a new and additional servitude, and not in contemplation
when the street was acquired or laid out, is an open question in
this state and one which we are at liberty to decide on reason and
the analogies of the law.
On the part of the plaintiffs we are not asked to reverse the
unbroken line of decisions in this state which hold that a steam
or street railroad constructed and maintained on the grade of
a street by authority of municipal authority duly delegated is
not a new and additional servitude; neither is it insisted that
the municipal authority may not grant an elevated railroad the
riglit to occupy a street subject to its liability to pay abutting
owners damages for injuries to their casement as abutters on
such street.
But tliey do contend that this court has not gone to the extent
of holding tliat an elevated railroad, built on permanent struc-
tures in a public street which interfere witli, and deprive the
owners of, their easement and free access to and from buildings
and deprive them of light and air. is not an additional servitude
and one not contemphued when tiie street was establislied and
538 American State Reports^ Vol. 101. [Missouri,
laid out. They insist that the logic and reasoning of our de-
cisions on the contrary lead to the conclusion that such structures
as those described in their petition are inconsistent with the
original dedication of the street and are such an injury to the
abutting property owners as entitles them to damages therefor.
On the other hand, defendants assert that the construction of
an elevated street or steam railroad on a street differs from one
constructed on the grade of the street in degree only, and not
in principle; that the principle upon which our decisions hold
that a railroad built on the grade is not a new servitude, is not
that they do not in fact inconvenience and damage the abutting
owners, and depreciate their property, but is that ''*'' the city
has the right to apply the street to any public service which will
not destroy it as a highway or as a means of egress or ingress
to and from the abutting property, and that all other resulting
damages are only such as were contemplated in the original
dedication of the highway, whether by donation, purchase, or
condemnation — that a long freight train passing on grade might
make as much noise, emit as much smoke, and raise as much
dust, as a train on an elevated road; and that an elevated road
does not destroy the street as much as a surface road.
That the expression that "a city may authorize a steam rail-
road to be built on the grade of a street" is not a careless one,
we think every decision of this court in which it is used will
demonstrate. It is used advisedly, and in contradistinction to
fi road built on an embankment or in an excavation. As said by
Judge Black, the right to build a steam railroad in a street is
''hedged about with many qualifications," and one is, "that if
built otherwise than on the grade, it is an unwarranted inter-
ference with a highway dedicated to the use of the traveling
public, and with the rights of property owners abutting thereon.
In the Story case (90 N. Y. 122, 43 Am. Rep. 14G), the
distinction was made between a surface railroad and an elevated
road on a public street. In the former, no part of the street,
was rendered impossible of passage with any vehicle or by any
Avayfarcr or traveler; there was nothing exclusive in its use of
the strcot. The rails being on grade, did not obstruct tho ])as-
sago of any other vehicles along or across the tracks, and the
delay l)y the passage of trains was no greater than that oc-
casioned by vehicles and carriages of private citizens to which,
of course, every person using the streets must submit, whereas
an elevated railroad built and constructed on a superstructure
tuppurted by heavy and pornianent pillars of iron, stone or
Feb. 1904.] De Geofroy v. Merchants' etc. Ry. Co. 539
brick, constitutes a permanent perversion of the use of the
street, in that the space it occupies with the pillars "^^^ is per-
manently diverted from use by the public, to which it was
originally dedicated, to the exclusive use of the railroad, and
deprives the public of that free and unobstructed use of the
street "from end to end" and from "side to side" to which it is
entitled, and seriously impairs the easement of free and unin-
terrupted passage and circulation of light and air to which the
abutting owners are entitled.
The doctrine thus announced has been adhered to in all the
subsequent cases in New York: Lohr Case, 104 N. Y. 288, 10
N. E. 528; Kane Case, 125 N. Y. 164, 26 N. E. 278, 11 L. E.
A. 640.
In Fobes' Case, 121 N. Y. 505, 23 N". E. 919, 8 L. R. A. 453,
Judge Peckham reviewed the Story case, and pointed out that
prior to the Story case that court had held, as we have held in
Missouri, that a surface railroad was not a new servitude, and
that as to surface railroads the Story case did not overrule or
change the law in regard to railroads laid on the grade, but "em-
bodied the application of what was regarded as well established
principles of law to a new combination of facts, such facts
amounting, as was determined, to an absolute and permanent
obstruction in a portion of the public street, and in a total
and exclusive use of such portion by the defendant, and such
permanent obstruction and total and exclusive use, it was fur-
ther held, amounted to a taking of some portion of plaintiff's
easement in the street for the purpose of furnishing light, air
and access to his adjoining lot. The structure, by the mere fact
of its existence in the street, permanently and at every moment
of the day took away from plaintiff some portion of the liglit
and air which otherwise would have reached him and, in a de-
gree very appreciable, interfered with and took from him his
facility of access to his lot, such interference not being inter-
mittent and caused by the temporary use of the street by the
passafje of the veliicles of the defendant while it was operating
its road through the street, but caused by the iron posts and by
the superstructure imposed thereon, and existing for every mo-
ment of the ''^^ day or night. Such a permanent, total, ex-
clusive and absolute appropriation of a portion of a street as
this structure amounted to was held illegal and wholly beyond
anv legitimate or lawful use of a public street." He says fur-
ther on: "In the Story case it was argued that no real distinc-
tion in principle existed l^etween a steam surface and an elevated
540 Americax State Reports, Vol. 101. [Missouri,
railroad resting on such a structure as was proved in that case.
This court, liowever, made the distinction," and held "that it
was so real and tangible in fact as to call for a different judg-
ment than would have been proper in the case of the ordinary
steam surface railroad." What was then said was reasserted
in Sperb v. Metropolitan etc. Ry. Co., 137 N". Y. 155, 53 N. E.
1050, 20 L. R. A. 752, and in which it was added: "The
doctrine of the elevated railway cases has been of steady and
consistent growth, since its rise in the decision of the Story
case." The last-mentioned case was decided l)y a divided court,
but all of that court has subsequently concurred in tliat doctrine.
When it is considered tliat the court of appeals of Xew York
held, and still holds, just as this court has always held, that a
surface railroad is not a new servitude on the street, but dis-
tinguishes an elevated from a surface railroad, its opinions are
entitled to great consideration on a question which originated
in that state, because the city of New York was the first to
authorize an elevated road on its public streets. Upon funda-
mental principles, the right of easement by the abutting prop-
erty owners, the nature and purpose of a public street, tbe per-
manent and obvious nature of the injury to the abutting prop-
erty by the construction of such a structure as plaintiffs describ(^
in their petition, renders it a new and additional servitude. Wo
think the distinction between tbe fitful, intermittent use of a
street by a surface railroad and the iiermanent exclusive use of
the same by an elevated railroad, shutting out the air and liglit
and interfering with that free access which every abutting owner
lias to and from the street, is too "-^ plain to be obscui-ed or
disregarded, and that it is pro tanto a taking of plaintitl's' ease-
ment within tbe meaning of our constitution and laws, and
entitles them to compensation tberefor.
It is true that some very al)le courts and law-writers, notably
tlie supreme court of Minnesota, in l^amm v. Chicago etc. Ry.
Co., 45 Minn. TS, 47 N'. W. 4.-)."), lo L. R. A. 2(is. and Wood on
Railroads, volume ], page 778, find difhculty in reconciling the
(lot trine of tbe Storv case with tbe former decisions of tbe New
York court as to sui-face railroads, but it seems to us tbat tbe
e.-scntial difl^'rciue i.-; tbat urgod by Judge Danforlli. to wit,
"tbe change of grade by permanent structures wbich result in
the injury to. or destruction of tlie abutting owner's eascnnent."
Were it a new (jucstion. we would be greatly inclined to say tbat
a stoain railroad emitting steajn, smoke, and cinders in front
of an aijuttcr"^ ]irojierty was a ^ervJtude never contemjjjated in
Feb. 1904.] Be Geofeoy v. Merchants' etc. Ry. Co. 541
the establishment of the street, but the rule to the contrary, as
already said, has been too long maintained, and too many rights
have been vested on the faith of it, for the courts now to dis-
turb it, but there is no sound argument or reason, in our opin-
ion, for extending it one whit further than we have heretofore
gone.
Our conclusion is that the plaintiffs state a good cause of
action and one entitling them to damages, irrespective of sec-
tions 6116 and 6117 of the Revised Statutes of 1899, which in
our opinion did not change the law as to railroads constructed
on the grade or surface of the street, as was ruled in Ruckert v.
Grand Ave. Ry. Co., 163 Mo. 260, 63 S. W. 814, and Xegel v.
Lindell Ry. Co., 167 Mo. 89, 66 S. W. 1090.
2. But conceding that plaintiffs had a cause of action, the
question arises on the face of the petition whether that action
is not barred by our statute of limitations.
''^^ The defendant's structure is of a permanent character,
and the injury to plaintiffs' property was susceptible of ascer-
tainment when the said superstructure and railroad was com-
pleted in 1890 as alleged in the petition.
In Howard Co. v. Chicago etc. R. R. Co., 130 Mo. 652, 32
S. W. 651, this court said: "While there is some conflict be-
tween the American cases on this subject, the rule sustained by
the great weight of authority seems to be that when by wrong-
ful acts a permanent nuisance is created and the injury there-
from is direct, immediate and complete, so that the damages
can be immediately measured in a single action, the statute
will begin to run from the erection of the nuisance. On the
other hand, when the injury, as in this case, is not complete,
so that the damnges can be measured at the time of the creation
of the nuisance in one action, but depends upon its continuance
and the certain operation of tlie seasons or of the forces set in
motion by it, the statute will not begin to run until actual
damage has resulted therefrom" : Citing cases, among others,
James v. Kansas City, 83 Mo. 567.
In James v. Kansas City, 83 Mo. 567, it was said: "Where
the damage is complete by the original act of trespass, the stat-
ute begins to run from that time." In this case the structure
was permanent and complete in 1890. The theory of the plain-
tiffs is that they were entitled to damages for the construction
of such permanent structure, and that theory is correct, and
hence they were required to bring their action witliin five years
after its completion.
542 American State Reports^ Vol. 101. [Missouri,
Their damages could have been estimated in one action, at
that time, and the five years' limitation must and does con-
trol: Kev. Stats. 1899, sec. 4273, 4th clause; Smith v. Sedalia,
152 Mo. 283, 53 S. W. 907, 48 L. R. A. 711.
It followed that the plaintiffs were barred when they com-
menced their action, and on this ground alone the judgment
of the circuit court must be, and is, '^^^ affirmed,
Robinson, C. J., Burgess and Fox, JJ., concur in toto.
Marshall, J., concurs in separate memorandum.
Valliant, J., dissents as to first paragraph of the opinion,
but concurs in second paragraph.
MARSHALL, J. I concur in the result, and am of opinion
til at all steam railroads on a public street are an additional ser-
vitude, and when constructed on the grade, necessarily destroy
the street for ordinary street purposes, but the elevated roads
are not as injurious to abutting property as grade roads, as is
shown by the grade road on Poplar street and the elevated road
on Front street, in St. Louis. I am further of opinion that
if the matter as to surface steam roads was not settled by the
doctrine of stare decisis, they ought not to be allowed on the
streets of a city.
DISSENTING OPINION.
VALLIAXT, J. This court has in numerous decisions, be-
ginning in 18G2 with Porter v. North Missouri Ry. Co., 33 Mo.
128, and ending in 1902 with Nagel v. Lindell Ry. Co., 167 Mo.
S9, 66 S. W. 1090. said that it was lawful for a city to au-
thorize the construction and operation of a railroad in a street,
and that such a use of the street was not a new servitude.
T7nder these decisions, street railroads and steam railroads have
been constructed and operate in the streets of all tlic cities in
this state, and in many instances the value of property abutting
tlie street? so used has been destroyed or greatly impaired; yet
the court has said that the owner of the pro|)erty has no remedy.
An elevated railroad in a street may, in point of fact, ac-
cording to tlie ])articular circumstances, be more or less de-
structive of tlie value of the pro])erty than a surface road, but
in point of law there is no difference between the right to sub-
ject the street to the servitude of a railroad on the surface and
to that of a railroad on an elevated structure. If the one is
Feb. 1904.] De Geofroy v. Merchants' etc. Ry. Co. 543
not a new servitude, ''^^ the other is not; the principle is the
same in both cases. If the court is now of the opinion that its
former decisions were wrong, it would be better now, at this
late date, to say so. But as long as we uphold our former de-
cisions, we cannot, in my opinion, with consistency, say that
an elevated railroad is a new servitude.
For this reason I am unable to concm* in the first paragraph
of the opinion in this case.
Abutting Lot Owners on a City Street have a right to easements of
access, light, and air which cannot be taken for private use on any
terms or under any conditions: Townsend v. Espstein, 93 Md. 537,
49 Atl. 629, 52 L. E. A. 409, 86 Am. St. Eep. 441, and see the cases
cited in the cross-reference note thereto; First Nat. Bank v. Tyson,
133 Ala. 459, 91 Am. St. Eep. 46, 32 South. 144; O'Brien v. Central
Iron etc. Co., 158 Ind. 218, 92 Am. St. Eep. 305. 63 N. E. 302, 57 L.
E. A. 508; monographic note to Wright v. Austin, ante, pp. 102-118.
As to the application of this doctrine to the case of elevated rail-
ways, see the note to Field v. Barling, 41 Am. St. Eep, 325.
CASES
rx THE
SUPKEME COUKT
OS"
MONTANA.
KIPP V. BURTON.
[29 :M:ont. 95, 74 Pae. 85.]
EXECU'TIONS, VOIDABLE — Amendment of. — Under a statute
providing among other things that a writ of execution must be is-
sued in the name of the state, sealed with the seal of the court, and
subscribed by the clerk thereof, the failure of the latter to affix the
seal of the court is a mere clerical error, which renders the execu-
tion voidable only and leaves it subject to amendment, (p. 550.)
EXECUTIONS, VOIDABLE— Curative Statute. — A sale made
under an execution defective and voidable by reason of its failure
to contain the seal of the court, made prior to the enactment of a
statute providing that all judicial sales of real property previously
made on proceedings to satisfy valid judgments, shall be sufficient
to sustain a sheriff's deed based on such sale, is validated by smh
statute, without amendment of such execution by the court, (p. 550.)
McITatton & Cotter, for the appellants.
C. 3kl. Parr, for the respondent.
»s POOEMAX, C. In this action plaintiff obtained jivVj-
ment against defendant Burton for the sum of three hundred
and sixty-four dollars and fifteen cents, and costs, on April !♦,
1S96. Thereafter, on April 16, 1896, a writ of execution wa-
issued on said judginent, which writ was correct in all respects
so far as the qu'-stions here presented are concerned, except tliat
the seal of the court was not placed thereon. On May 11, 1806,
the sheriff returned the writ with the indorsement that ho
had made the amount thereof by selling certain real estate of
the defendant. On December 22, 1900, the plaintiff served no-
tice on defendant that he would, on December 26, 1900, move
(544y
Nov. 1903.] ILii'P V. BuiiTOX. 645
the court to amend the writ of execution by ordering the seal
to be plac-f-d thereon. At the hearing of this motion on said
twenty-sixth day of Deo^'mber, 1900, the defendant appeared
gpecially by her attorney "for the purpose of objecting to the
jurisdiction of the court to make the order asked for, and upon
the further ground that no notice of the said application had
ever been served upon defendant or her attorneys/"' These ob-
jections were by the court overruled, "and thereupon the court
immediately made an order, and had the same entf^red of record
in the minut<js, .... authorizing and directing the clerk
.... to attach to the said pretended execution .... the seal
of said court.'*' To thl^ action of the court the defendant
**^ excepted. From this order so made this appeal is prose-
cuted.
1. The respondent asks to have this appeal dismissed for the
reason that the record contains no copy of the order appealed
from. The record presented to this court shows that there is
no merit in the motion. It should, therefore, l>e overrulefl.
2. The appellant contends that the court erre<l (1) in per-
mitting said execution to be amended by attaching the seal
thereto; (2) in ordf^nng or directing that the seal be attached
to the pretended execution nunc pro tunc, and (3) in holding
that it had jurisdiction to make tlje said order.
The first question to be considered — and which we deem the
vital question in this case — is whether the writ of execution so
issued without the seal was void, or merely voidable. If it were
void, it could not be amended, for that which is void is not the
subject of arneiidrnent. If, however, the writ was merely void-
able, it could be amended, provided that the aiijendment was
made within tlie proper tiriie and in the proper manner.
On this question the authorities are in irreconcilable conflict.
One line of de^.-isions holds that the comrnon-Jaw rule that an
unsealed writ is void should prevail. The other line of de-
cisions maintains that the omission of the seal is a misprision.
and mav be rf-rncdied by arnendmf-nt. The code r^rovi-ions rela-
tive to the form and cont^-nts of a writ of e.r^:r<';iition. so r'ar as
material here, are found in section 1211 of the Code of Civil
Procedure, and arc as fo]JO^^■s : ^"'Tbe v.TJt of Qx^rn^nion rn'r-* Vf
issuf:^] in the name of th^^ '-t-'t'-' of ^^fontana. seaV-d with the
f-a] of the court, an] subscribed bv t'jc clerk, and rn-:s-r b^
directed to the sheriff, and must in'el^ig'iblv refer to the iwVj-
rnent, statinjr the court, the countv where i'i& judzr.cent-ro'.l is
flrjf]^ an^] if it he :"or rnonev. trie a.ccount thereof, and ti^e
Am. .St R'ip. Vol. 10!-.':;.-
546 American State Reports, Vol. 101. [Montana,
amount actually due thereon, and shall require the sheriff sub-
stantially as follows," etc. Appellant refers to the discussion
in Choate v. Spencer, 13 Mont. 137, 40 Am. St. Rep. 425, 33
Pac. 651, 20 L. R. A, 424, as sustaining the contention that
the writ in this case is void. The question before the court in
that case was whether a summons ^*^ not containing the seal
of the court was void. The court, in the discussion of the prin-
ciple involved, stated that the statute, in requiring a summons
to be issued under seal, did not change the common law, and
then called attention to Insurance Co. v. llallock, G Wall. 55G,
18 L. ed. 948. This latter case went up from the state of
Indiana in 1867. The point decided was that an unsealed order
of sale was void by reason of the common law; but in Hunter
V. Burnsville Turnpike Co., 56 Ind. 213, decided in 1877, it
was held that an unsealed order of sale was amendable by reason
of the provisions of the stiitute of 8 Henry VI, cha])tcr 12,
which was at that time in force in that state; and in Warmoth
v. Dryden, 125 Ind. 355, 25 X. E. 433, the same court says:
"While there is mucli conflict in the authorities upon this sub-
ject, the better opinion is that the failure to attach the seal ol
the court to an execution docs not render it void." It is ap-
parent that it was not the intention of the court in Choate v.
Spencer, 13 Mont. 127, 40 Am. St. Rep. 425, 32 Pac. 651, 20
L. R. A. 424, to establish the general doctrine that all writs
must be issued under seal, but that reference was made to In-
surance Co. V. llallock, 6 Wall. 556, 18 L. ed. 948, as sustain-
ing tlie position that the sunmions must be so issued; for, if a
court holds that a subsequent writ must be scaled, it is apparent
that the same court would hold that the summons — the original
writ, the jurisdictional writ — must likewise be sealed. I'his
construction of the decision in Choate v. Spencer, TA ^^Font. 127,
40 Am. St. Pop. 425. 32 Pac. 651, 20 L. R. A. 421. and tlie
fact thai the court had in mind tliat a distinction exisis Ijc-
tween a summons and subsc'pu'nt writs, arc gatliered froin tlie
closing paragra[)h of the decision, which is as follows: ''We hold
in the case at bar that the summons — the jurisdictional writ —
under tlie law and decisions in force and controlling in tliis
jui'isdiction at the time of its issuance was void. l)ecause not
issued under the seal of the court. If this case involved a de-
fective ])rocess. i-sued su!isef|uent \o suinnions^ and the acquiring
of jurisdiction bv the court tliereunder. then the contention of
resjiondents that such defect or irregmlarity could l)e amended
or disregarded might be urged with great force."
Nov. 1903.] Kipp V. Burton. 547
Under the Wisconsin statutes, courts are required to disregard
^^^ any error or defect in any proceeding not affecting a sub-
stantial right: Wis. Eev. Stats. 1898, sec. 2829. Power is
given at any stage of the action, before or after judgment, in
furtherance of justice, to amend any process by correcting a mis-
take in any respect: Wis. Rev. Stats. 1898, sec. 2830. Under
this statute the court, in Corwith v. State Bank of Illinois, 18
Wis. 5C0, 86 Am. Dec. 793, says: "The neglect of the clerk
to affix the seal of the court to the writs did not render them
void. It was a defect which could be cured by amendment.
.... The seals were affixed to the executions by an order of
the court before this motion was made to set aside the sales."
These statutes of Wisconsin under which this decision was ren-
dered are substantially the same as sections 774 and 778 of our
Code of Civil Procedure.
In Wolf V. Cook, 40 Fed. 432 — a case originating in Wiscon-
sin, and carried to the federal court, involving the question
as to whether the omission of a seal from a writ of attachment
rendered the writ void or voidable — the court says, in discussing
the question with reference to the Wisconsin decision above re-
ferred to, and the case of Insurance Co. v. Hallock, 6 Wall. 556,
18 L. ed. 948: "It is, however, insisted that, the writ being ab-
solutely void under the rule of the federal court in Insurance
Co. V. Hallock, 6 Wall. 556, 18 L. ed. 948, tbere was notbing to
amend Here is a writ that, abiding in the state court,
was not void; merely defective and amendable By the
simple process of removal of the cause to the federal court be-
cause of the diverse citizcnsbip of the parties, that which was
valid and effective becomes void The executive officer of
the state court, wlio, prior to the removal of the cause, was jus-
tified in the execution of the writ, by the mere act of removal
becomes a trespasser ab initio. It would require a precise decla-
ration of superior and constraining authority to require me to
hold to such absurdity. 1 do not so read tbe decision in Insur-
ance Co. V. Hallock, 6 Wall. 556, 18 L. ed. 948. There no ques-
tion of inberent power to amend or of curative statutes was
invoked. Indeed, tbe statute autborizing anicndnient of process
by tbe federal courts (U. S. Rev. Stats^ 9i8, U. S. Conip. ^"^
Stats. 1901, p. C)do) was enacted subsequently to tbat decision.
^^^ Tbe court, in its opinion, refers to tbe case of Ov(>rton v.
Cbeek, 22 How. -16. 1G L. ed. 285. holding tliat a writ of error
was void for want of a seal. Yet since tbe statute (Act June 1,
1872, c. 255, sec. 3, 17 Stats. 197) it has been ruled by that
548 American State Eeports, Vol. 101. [Montana,
court that a writ of error may be amended where the seal to
the writ is wajating: Semmes v. United States, 91 U. S. 21, 31,
23 L. ed. 293. The ruling of Pomeroy v. Bank, 1 Wall. 592,
17 L. ed. 638, cited in Insurance Co. v. Hallock, 6 Wall. 556,
18 L. ed. 948, that a bill of exceptions must be under the seal
of the judge, would seem overruled by Generes v. Campbell, 11
Wall. 193, 20 L. ed. 110, but upon other grounds than here
considered. In Tilton v. Cofield, 93 U. S. 167, 23 L. ed. 858,
the court cites approvingly the case of Talcott v. Eosenberg, S
Abb. Pr., N. S., 287, holding that a writ may be amended by
adding the seal In such case the federal courts follow
the construction of the state statute, declared by its court of last
resort: Bacon v. Insurance Co., 131 U. S. 258, 9 Sup. Ct. Rep.
787, 33 L. ed. 128; Duncan v. Gegah, 101 U. S. 810, 25 L. ed.
875." These federal decisions and the Indiana decision in
Hunter v. Burnsville Turnpike Co., 56 Ind. 213, all rendered
subsequent to the decision in the ITallock case, would seem to
render that case inajjplicable to a stale having a statute per-
mitting amendments to judicial j)roccsses.
In Gordon v. Bodwell, 59 Kan. 51, 68 Am. St. Pep. 341, 51
Pac. 906, the court holds that an order of sale issued without
the seal of the court is void. This holding, however, is by rea-
son of the constitutional provision which requires all writs to
be issued under the seal of the court. However, in Taylor v.
Buck, 61 Kan. 694, 78 Am. St. Pep. 346, 60 Pac. 736, the court
holds that an execution properly authenticated with the seal oL'
the court, but lacking the signature of the clerk, is voidaliic,
and may be amended, and places the decision upon the ground
that, while a seal is a constitutional requirement which the legis-
lature cannot alter, the signature of the clerk is a statutory re-
quirement, which may be waived l)y curative statutes.
*^'* 3. It is contended that the reasoning in Choate v. Spencer,
13 :\Iont. 127, 40 Am. St. liep. 425, 32 Pac. 651, 20 L. P. A.
4 24, is applicable to the case at bar. We cannot agree with tliis
contentioTi. There is a distinction b(>twoen a summons and a
writ of execution, and by reason of that distinction the casi-s ol
Choate V. Spencer. 13 :\iont. 127, 40 Am. St. Pcj). 4<?5. ;)2 I'ac
(i51, 20 L. P. A. 424, and of Sharman v. II not. 20 :\lont. o-V".,
63 Am. St. Pep. 615. .V3 Pac. 558, are not in point in this ca-e.
A summons is isstieil at the instance of the plaintiir, without
any previous action on the ]>art of the court. It is not neces-
sary that it be served by an oiheer of the court: Code Civ. Pr(>c.,
sec. 635. The court has no jui-i-dirtion of the defendant until
Nov. 1903.] . Kipp V. Burton. 549
ihe summons is served, and under the decisions in Choate v.
Spencer, 13 Mont. 127, 40 Am. St. Eep. 425, 32 Pac. 651, 20
L. K. A. 424, and Sharman v. Huot, 20 Mont. 555, 63 Am. St.
Eep. 645, 52 Pac. 558, the defendant cannot be put to the costs
and trouble of appearing in court until served with a summons
which complies with these specific provisions of law. An exe-
cution follows a judgment. The defendant has been in court.
The subject matter has been litigated. The court had jurisdic-
tion. It has been judicially determined that the defendant is
justly indebted to plaintiff in a specific sum. It is the duty
of the defendant to pay this sum. He did not pay it, and by
authority of the court a writ of execution is issued by one
official of the court (the clerk), directed to another official of
the same court (the sheriff), commanding him to subject the
property of the defendant to the payment of the judgment which
by other provisions of law is a lien on his real estate, and whicli
it is his duty to pay. The writ of execution is no more juris-
dictional than are other orders made and writs issued in the
case subsequent to the summons. The court obtained jurisdic-
tion of the subject matter of the action by the filing of a proper
complaint, and of the defendant by the service of a valid sum-
7uons. Nothing remained over which to acquire jurisdiction.
The execution was not jurisdictional. It was only a procedure
in the case, its sole function being to carry into effect the judg-
ment of the court. The omission of the seal therefrom did not
of itself mislead or injure defendant. The law does not require
a copy of the writ to be served upon him. The error in not
affixing the seal was an error on the part of an officer of the
court acting in a ministerial capacity.
104 rpj^g statute is as imperative with reference to the re-
quirement that the amount due shall be stated in the execution
as it is with reference to tlie provisions relating to the seal, yet
tills court, under a similar statute, held in Koush v. Fort, 2
Mont. 482, that an execution directing levy for more than the
judgment called for was amendable (Codified Stats. 1871-72,
sec. 251, p. 80), and this appears to be the universal doctrine:
Hunt V. Loucks, 38 Cal. 372, 99 Am. Dec. 404; Van Cleave v.
Buchor, 79 Cal. 600, 21 Pac. 954. Executions failing to com-
ply with other positive requii'ements of tlie statute have been
held aniendable: Ilibberd v. Smith, 50 Cal. 511; Pecotte v.
Oliver, 2 Idaho, 251, 10 Pac. 302; State v. Cassidy, 4 S. Dak.
02, 54 N. W. 928. The provisions of the statutes of amcnd-
nieuts (Code Civ. Proc, sees. 774, 778) are of as commanding
650 American- State Eeports, Vol. 101. [Montana,
authority a^s section 1211 of the same code, and are as imperative
in their directions; and all these sections should be taken into
consideration in determining a question of this kind. These
considerations lead to tlie conclusion that the writ of execution
issued in this case was not void, but voidable; and in support
of this position we cite the following cases, not heretofore re-
ferred to in this discussion: Hall v. Lackmond, 50 Ark. 113. 7
Am. St. Eep. 84, 6 S. W. 510; People v. Dunning, 1 Wend. 17;
Wright V. Xostrand, 94 N. Y. 31; Dever v. Akin, 40 Ga. 423;
Lowe v. Morris, 13 Ga. 147; Miichell v. Duncan, 7 Fla. 13;
Taylor v. Courtnay, 15 Xeb. 190, 16 N. W. 842; Sawyer v.
Baker, 3 Me. 29; Porter v. Haskell, 11 Me. 177; Freeman on
Executions, 3d ed., 70 et seq. ; Bailey v. Smith, 12 Me. 196;
Arnold v. Xye, 23 Mich. 286; Wiiherel v. Pandall, 30 Me. 168.
4. The act of March 1899 (Lav.'s 1899, p. 145), contains
the following provision: "Sec. 2. All judicial sales of real prop-
erty heretofore made in this state on proceedings to satisfy valid
judgments or decrees of any court, and the moneys bidden
thereon paid to the officer making such sale, shall be valid and
sufficient in law to sustain a sherilFs deed based on such -^**''
sale, and when no such deed has been executed, shall entitle
such purchaser to such deed ; and such deed when executed, shall
be sufficient to convey all the title of the judgment debtor in
the premises so sold to tlie purchaser at said sale, and all de-
fects and irregularities in the issuance of execution, or the man-
ner of making or conducting the sale, shall be disregnrdcd."
The elTect of this law is to cure the Hefect in this execution, and
render tbe sale had tliereon valid. It is inimaterial what action
was taken by the court with reference to amending this writ at
any time subsequent to the enactment of the law above quoted.
The writ was made valid by that law without amendment, and
the other a.<5signments of error are immaterial.
We recommend that the order in the case bo affirmed.
Per CURIAM. For the reasons staled in the foregoing opin-
ion, tbe order appealed from is affirmed.
AMENDING WEITS OF EXECUTION.
I. Power of is Liberally Exercised, 551.
n. Practice to be Pursued in Procuring Amendments, 552.
III. Power Extends to All Matters of Form, 553.
IV. Amending Direction to the Officer, 554.
V. Amending Omission in Words of Command, 555.
VI. Amending to Conform Execution to Judgment, 555.
Nov. 1903.] Kipp V. BuETON. 551
VII. Amending Error in Designating the Return Day, 556.
Vlii. Amending the Clause of Attestation, 556.
IX. Amending by Affixing Seal, 558.
X. Time Within Which Amendment may be Made, 558.
XI. The Effect of Amending, 559.
XII. Effect of not Amending, 561.
XIII. Persons Against Whom Amendments may be Made, 561.
I. Power of is Liberally Exercised. — At the present day, the
power to amend executions so as to correct clerical misprisions is uni-
versally conceded, and frequently invoked. "Indeed, it is very diffi-
«ult to prescribe limits to this salutary power possessed by the
courts, of permitting amendments in their process, whether mesne
or final. It is a power exercised for the promotion of justice, with
no parsimonious hand; yet, where its allowance would be destructive
of the rights of innocent third persons, the court will scan well the
grounds on which its action is sought": Cawthorn v. Knight, 11 Ala.
582; McCollum v. Hubbert, 13 Ala. 284, 48 Am. Dec. 56; Deloach v.
Starte Bank, 27 Ala. 444; Meyer v. Ring, 1 H. Black. 541; Simon v.
Gurney, 5 Taunt. 605; Atkinson v. Newton, 2 Bos. & P. 336. "When
"we advert to the doctrine of amendments, and the cases which have
been decided on that subject, it will be perceived that the object of
the whole system is to provide a remedy for casual omissions, or
negligence of different officers of the court; in a word, to enable the
party to do that which the law and the facts in the case would have
authorized or did require the officers to have done. The decisions on
this subject are so numerous, and amendments so common, and I
may almost say unlimited, that the difficulty is in selecting such
cases as seem most directly to apply to the subject before us":
Treasurers v. Bordeaux, 3 McCord, 144. It has been said that there
is no absolute right to the amendment of a writ, and that whether
leave to amend should be granted or not rests in the discretion of
the court to which the application is made, and hence that its action
will not be reviewed upon appeal, unless it appears to have treated
the question as one of law, rather than of discretion, and to have
^rred in its interpretation of the law: Hayford v. Everett, 68 Me.
505. It is perhaps unfortunate that language of this purport should
ever have been used; for where there is no question that the facts
■of two cases are identical, it ought not to be possible that diverse
judgments should be sustained. It is of the utmost importance, both
to purchasers at execution sales and to defendants whose property is
exposed thereto, that persons learned in the law and conversant with
the facts may determine therefrom whether leave will be granted to
amend a writ apparently amendable, and this they can never do if
the right to amendment is subject to the discretion of the court if
it be a discretion not controlled by settled rules of law. It is, how-
ever, settled that leave to amend will not be granted whore it is not
in furtherance of justice. A sale ma<le under the writ may be for an
553 American State Eeports^ Vol, 101. [Montana,
inadequate price, and this fact may probably be due to the imperfect
character of the -writ. If so, the principles of natural justice dic-
tate the vacating of the sale rather than supporting and making it
impregnable by an amendment of the writ, and the action of the
court in amending the writ and refusing to quash the sale may be
reviewed on appeal: Flint v. Phipps, 20 Or. 340, 23 Am. St. Eep. 124,
25 Pac. 725.
The theory upon which leave to amend writs is sought and granted
is, that the clerk of the court has disregarded the law and the pre-
sumed command of the court by issuing a writ which does not con-
form to the judgment, or is defective in some other respect. The
court, in directing him to amend it, but requires him to perform his
original duty. It has hence been held that the power to amend ap-
plies only to writs issued by clerks of courts, or out of courts having
clerks, and therefore that a justice of the peace, especially if the
writ has been executed, has no power to amend it: Porter v. Haskell,
11 Me. 177; Stevens v. Chouteau, 11 Mo. 382, 49 Am. Dec. 92; Toof '
V. Bcntley, 5 Wend. 276. On the other hand, it is insisted that the
power is inherent in all courts having power to issue writs, includ-
ing those of justices of the peace: Silner v. Butterfield, 2 Ind. 24.
If the making of an amendment is necessarily the exercise of the
judicial power, it must be restricted to judicial officers. In some of
the states, however, clerks of courts are authorized by statute to
amend writs in so far as to correct mistakes in issuing them: Smith
V. Bell, 107 Ga. 800, 73 Am. St. Eep. 151, 33 S. E. 684; Gross v. Minis,
G3 Ga. 563. So far as we know, the constitutionality of such stat-
utes has not been questioned.
II. The Practice to be Pursued in Procuring Amendment of a
Writ is not distinctly disclosed in any of the cases fnlling within
our observation. In many instances the defects on account of which
an amendment is sought are so clearly merely clerical errors, and the
case is so free from doubt respecting tlic writ intended to l)e issued,
that proceedings taken thereunder must be sustained, whether any
formal amendment is ever made or not. In such cases the practice
to be pursued in procuring an amendment cannot lie material, for,
conceding leave to amend to have been iniprusideiitly granted, or
disregarding the amendment altogether, the riglits of tlic plaintiff
and of all persons claiming un<ler the writ are still protected and
secure. If, on the other hand, the amendment sought is of so sub-
stantial a character, or of such doubtful propriety, that the rigiits
of the parties may be affeeted by it, or, instead of being a matter of
course, it is a matter upon which reasonal)]e judges may differ, cer-
tainly the parties to be affeeteil by it should be brought before tlie
court by some notice warning tln'in of the proposed action and giv-
ing them an opportunity to resist it: iiyhec v. Asliljy, 2 fiilm. 151,
43 Am. Dec. 47; Simps'm v. Simp'^on, C4 X. C. 4l:7. Iu tlie aliseiice of
such notice, they should not be held beuud by the order granting
Nov. 1903.] KiPP V. BuETON. 653
leave to amend, nor by the amendment made in pursuance of it:
Morris v. Balkham, 75 Tex. Ill, 16 Am. St. Kep. 874, 12 S. W. 790.
We assume, therefore, that the proper practice of a person desiring
to obtain leave to amend a writ in any substantial particular, and
■where leave does not follow as a matter of course from a mere
inspection of the record, is to give written notice to all persons ap-
parently to be prejudiced by the amendment, that an application will
be made to the court at a time stated for leave to amend the writ
in a manner designated in such notice. If, however, a motion is
made to quash the writ or levy, and the parties in interest are there-
by brought before the court, the plaintiff or other person interested
in the writ may meet this motion by a counter-motion for leave to
amend and to thereby free the writ from the irregularity complained
of, and this counter-motion need not be preceded by any formal
written notice.
Sometimes leave to amend has been granted in a case other than
that in which the writ issued, as where the objection to the writ was
interposed in another action and the court engaged in the trial thereof
at once ordered an amendment to be made, so as to remove the ob-
jection. The leave thus given to amend may be sustained where
both actions are in the same court, and also when no harm could have
resulted from the amendment for the reason that, from an inspec-
tion of the record, it is clear that the order is a correct one, for in
that event the writ may be treated as amended, whether the record
is in that court or not: Dewey v. Peeler, 161 Mass. 135, 42 Am. St.
Eep. 399, 36 N. E. 800.
III. Amendments in Matters of Form.— "The form of execu-
tion most usually adopted contains the following particulars: 1.
It purports to issue in the name of some sovereign power; in England,
the name of the reigning monarch is used; in the United States,
the name is the state of ■ — , or the people of the state of — ;
2. It is addressed to the sheriff, or to some other officer competent
to execute it; 3. It commands the officer to do some act; 4. It shows
the purpose for which the act is to be done, or, in other words, tlie
judgment of which satisfaction is sought; 5. It usually directs a
time and place in which and to which a return must Le made; G. It
closes with a clause of attestation": Freeman on Executions, see. 3S.
We think that each of these parts may be amended, at any time,
where the ameniiment proper to be made can be ascertained, either
from reference to the record, or to the existing law prescribing the
form and contents of the writ. Hrnee, if the writ issues in the namo
of the territory of C, instead of in the name of the state (Carnahau
V. Pell, 4 Colo. 190), or in the case of an execution against the per-
son of the defendant niisiianies the town in whicli the county jail
is situated (Avery v. Lewis, 10 Vt. 332, 33 Am. Dec. 2U3), those are
amendable defects which do not destroy the efficiency of the writ.
554 American State Eeports, Vol, 101. [Montana,
"While an execution should follow and conform to the judgment,
it is clear that an amendment may be allowed if the execution can
be so identified with the judgment and the record on which the judg-
ment is founded that the court can find data by which to make the
amendment": Dewey v. Peeler, 1(51 Mass. 135, 42 Am. St. Eep. 399,
36 N. E. 800. "The general principle is, that when the judgment
is recovered in a court having jurisdiction, and the execution is is-
sued by the proper officer, irregularities either in the mode of issuing
it or in the document itself do not make it void; and that it may
be dealt with by the court upon motion of either party, and anieuded
or annulled as justice may require, and that service of it, if it is
not annulled, or service restrained or suspended, is not invali-il":
Cheseboro v. Barmc, 163 Mass. 79, 39 X. E. 1033.
It has been said, and perhaps truly, that a void writ cannot be
amended: McCormick v. Wheeler, 36 111. 114, 85 Am. Dec. 388; Clarke
V. Miller, 18 Barb. 269. The declaration of this general principle
is of no greater aid than is that other declaration to be found in so
many of the decisions, that an ainendablo writ is not void. We are
still left without any test to determine what writs are void and whiit
voidable. This question cannot be answered in a single sentence or
section, and the reader must be left to determine it from a vast
variety of decisions involving assaults upon writs and proceedings
thereunder from wideh' divergent points of attack, attended by an
infinite variety of circumstances.
rV. Amending the Direction to the Officer. — Where a writ is
directed to an improper officer, but executed by the proper
officer, the error in the direction does not vitiate the writ, and may
be cured by amendments: Eollins v. Rich, 27 Me 557; Hearsay v.
Bradbury, 9 Mass. 95; Wood v. Eoss, 11 Mass. 277; Walden v.
Davison, 15 Wend. 578. Whore such an error had been committed,
the court said: "This is a judicial writ, and the erroneous direction
is a mere misprision of our own clerk. Judicial writs are more abso-
lutely under the control of the court than original writs. Let tlie
amendment be made": Campbell v. Stiles, 9 Mass. 217. See Atkin-
son V. Gatcher, 23 Ark. 101; Simcoke v. Frederick, 1 Ind. 54; Morrell
V. Cook, 31 Me. 120. Where the error is in directing the writ to the
sheriff of one county, when it is intended to be delivered to the sheriff
of another county, there is some doubt whether it can be amended
so as to support proceedings taken in the latter county. In Illinois,
it has been held that this is not a proper case for an amendment,
and that, as the sheriff acted in the absence of any writ directed to
him, a levy and sale made by him are incurably void: Bybee v. Ashby,
2 Gilm. 151, 43 Am. Dec. 47. We think, however, that an error of
this character does not differ from other errors in directing a writ
to an improper officer, and hence that it does not vitiate the writ,
and may be cured by amendment: Christy v. Springs, 11 Okla. 710,
69 Pac. 864. If the writ is required to recite some pre-existing writ
Nov, 1903.] Kipp V. Burton. 555
and to state the county to which it was issued, the omission to comply
with such requirement is a mere irregularity which can be supplied
by amendment: Eads v. Wynne, 79 Hun, 463, 29 N. Y. Supp. 983.
V. Amending Omission in Words of Command. — Where the law
authorized executions to be levied on lands and tenements as
well as on goods and chattels, a writ issued, commanding a levy on
goods and chattels, but omitting the words "lands and tenements."
Under this writ, lands were sold and a conveyance made in pursu-
ance of the writ. About fifteen years afterward, this writ and deed,
having been offered in evidence, were objected to for this defect,
whereupon the court held as follows: "By an act of the legislature,
real estate, quoad hoc, is put on the same footing with personal, and
a plaintiff has the same right to have his judgment levied as well
of the one as the other. An execution is the process which the law
gives to enforce a judgment, and ought to pursue the law. It is a
remedy which a plaintiff has a right to ask of the court, and which
the court is bound to extend to him to the utmost extent of the law.
The omission therefore, of the words 'lands and tenements,' etc., in
the execution in the case of Williams v. Eobertson, is clearly a cleri-
cal mistake; considering it, therefore, as the act of the court, and
not of the party, I should be disposed to think, if it were necessary,
that the court would — even at this day — entertain a motion to amend
it, so as to render it consistent with, and make it as efficient as, the
law itself": Toomer v. Purkey, 1 Mill Const. 323, 12 Am. Dec. 634;
Treasurers v. Bordeaux, 3 McCord, 142.
VI. Amendments to Conform Executions to the Judgments on
which they were entered have been of very frequent occurrence.
By such amendments a variance in the name of the plaintiff
(Bank of Kentucky v. Lacy, 1 T. B. Mon. 7; Mackie v. Smith,
4 Taunt. 322), or of the defendant (Browne v. Hammond, Barnes,
10; Gross v. Mims, 63 Ga. 563; Vogt v. Ticknor, 48 N. H. 242),
or in the date (Friedlander v. Fenton, 180 HI. 312, 72 Am. St.
Eep. 207, 54 N. E. 329; Chase v. Gilnian, 15 Me. 66; First Nat. Bank
of Hagerstown v. Weekler, 52 Md. 30; Woolworth v. Taylor, 62 How.
Pr. 90), or amount (Sheppard v. Malloy, 12 Ala. 561; Sponee v.
Eutledge, 11 Ala. 557; Hunt v. Loucks, 38 Cal. 376, 99 Am. Dec. 404;
Doe V. Eue, 4 Blackf. 263, 29 Am. Dec. 368; MeCall v. Trevor, 4
Blackf. 496; Hutchens v. Doe, 3 Ind. 528; Saunders v. Smith, 3 Ga.
121; Paine v. Spratley, 5 Kan. 525; Smith v. Keen, 26 Me. 411;
Corthell v. Egery, 74 Me. 41; Eobb v. Halsey, 11 Smedes & M. 140;
Holmes v. Williams, 3 Caines, 98; Kokomo S. Co. v. Inman, 21 N,
Y. Supp. 705; Hinton v. Eoach, 95 N. C. 106; Waggoner v. Dubois,
19 Ohio, 67; Bachelder v. Chaves, 5 N. Mex. 562, 25 Pac. 783; Stev-
enson V. Castle, 1 Chit. 349; Laroche v. AVashbrough, 2 Term Eep.
737; Black v. Wistar, 4 Dall. 267; King v. Harrison, 15 East, 615;
Williams v. Waring, 5 Tyrw. 1128, Cromp. M. & E. 354; Bicknell
V. Witherell, 1 Q. B. 914), of the judgment may be corrected; or the
556 American State Reports^ Vol. 101. [Montana^
name of a party may be entirely stricken out vrlien its insertion was
not -warranted by the judgment (Cawthorn v. Knight, 11 Ala. 579j
Thompson v. Bondurant, lo Ala. 346, 50 Am. Dec. 136; Andross v.
Roberts, 18 Ala. 387; Deloach v. State Bank, 27 Ala. 4S7; Goodman
V. Walker, 38 Ala. 142; Green v. Cole, 13 Ired. 425, 35 N. C. 425), or
a name improperly omitted may be inserted: Morse v. Dewey, 3 N.
H. 535; Porter v. Goodman, 1 Cow. 413; Shaffer v. Watkins, 7 Watts
& S. 219. Hence a writ omitting the name of the plaintiff is not
void, but may be perfected by inserting his name: Smith v. Bell, 107
Ga. 800, 73 Am. St. Rep. 151, 33 S. E. 6S4. So, if the judgment was-
against the defendant in a representative capacity, and the writ
failed to state this fact, or stated it incorrectly, it may be amended
to conform to the judgment. If he is described in the writ as a
special administrator, it may be amended so as to describe him as
administrator with the will annexed (Dewey v. Peeler, 161 Mass. 135,.
42 Am. St. Rep. 399, 36 N. E. 800); or, if the writ is against him
as administrator of the estate, it may be amended so as to be against
assets of the estate which shall thereafter come into the hands of
the administrator to be administered (Hollis v. Sales, 105 Ga. 75,
29 S. E. 482), where such amendments will harmonize the writs with
the judgments intended to be enforced by them. The style of the
writ may also be amended so as to agree with the form prescribed
by statute: Hanna v. Russell, 12 Minn. 80; Thompson v. Bickford, 19
Minn. 17.
VII. Amending Error in Designating the Eetum Day. — Where
the law designates the return day, the omission to designate it
in the writ is, according to the majority of the authorities, a mere
clerical misprision of no serious consequence. Whether the return
day be improperly designated or altogether omitted, the writ need
not be quashed, but may be amended so as to make it what it should
have been in the first instance: Harrcll v. Martin, 4 Ala. 650; Kidd v.
Cromwell, 17 Ala. 648; Saunders v. Siiiitli, 3 Ca. 121; Ooode v. Miller,
78 Ky. 235; Harris v. West. 25 ?^riss. 1.16; Cramer v. Van Alstync, 9
Johns. 386; Shoemaker v. Knorr, 1 Dall. 197; Berthnn v. Kooloy, 4
Yeates, 205; Perking v. Woodfolk, 8 Baxt. 480; Furtade v. Miller,
Barnes, 213; Reubel v. Preston, 5 East, 291; Walker v. Hawkey, I
Marsli. 399.
VIII. The Clause of Attestation may also be amended: Haines
V. McCormick, 5 Ark. 665'; ,Taek.son v. Bowling, 10 Ark. 578; Rij)-
ley V. Warren, 2 Pick. 592; People v. ^^ontgomery C. P., 18 Wend.
63;!; Xcwnliam v. Law, 5 Term Rep. 577; Engloliart v. Dun])ar, 2
Dowl. P. C. 202; Rex v. Sheriff, 1 Marsh. 314. Thus an execution
tewted after tlie defcndmit "s dcntli may be anicTiilcd so as to liear
teste of the first day nf 1liP term (Center v. Billinglnirst, 1 Cow.
.".3; Lane v. Beltzhoover, Taiicv, 110), or, if tested out of torin, may
be amended so as to be tf-^tod in term lime: .Tones v. ('ook, 1 Cow.
313; Bertlion v. Keeley, 4 Yeates, 20,3; i;;!];<-r v. Smith, 4 Yeates^ lS.j,v
Nov. 1903.] Kipp V. Burton. 557
Shoemaker v. Knorr, 1 Dall. 197; Meyer v. Eing, 1 H. Black. 541. So,
if the court, place, or time at which the writ is to be returned is
improperly stated, the writ may be amended: Forward v. Marsh, 18
Ala. 645; Harrison v. Agricultural Bank, 2 Smedes & M. S07; Boyd
V. Vanderkamp, 1 Barb. Ch. 273; Van Deusen v. Brower, 6 Cow. 50;
Inman v. Griswold, 1 Cow. 199; Stone v. Martin, 2 Denio, 185; Hall
V. Ayer, 9 Abb. Pr. 220; Atkinson v. Newton, 2 Bos. & P. 336; Hart
V. Weston, 5 Burr. 2588; Hunt v. Kendrick, 2 W. Black. 856; Simon v.
Gurney, 5 Taunt. 605. And in case the clause of attestation be en-
tirely omitted, it may be inserted as an amendment to the original
writ: Mclntyre v. Rowan, 3 Johns, 144. So, if the writ be attested
in the name of the wrong person as chief justice, it may be amended
by striking out such name and inserting the proper one: Nash v.
Brophy, 13 Met. 476; Ross v. Luther, 4 Cow. 158, 15 Am, Dec. 341;
Brown v. Alpin, 1 Cow. 203; United States v. Hanford, 19 Johns.
173; Henry v. Henry, 1 How. Pr. 167; Spooner v. Frost, 1 How. Pr.
192. It has also been held that the signature of the clerk may be
added as an amendment: Whiting v. Beebe, 62 Ark. 421; Taylor v.
Buck, 61 Kan. 694, 78 Am. St. Rep. 346, 60 Pac. 736. This, however,
is contrary to the weight of authority, which seems to regard the
signature of the clerk or other person authorized to issue the writ as
indispensable to its validity. In the absence of such signature, it
cannot be successfully claimed that any writ has issued to which an
amendment can be applied: Freeman on Executions, sec. 45; O'Don-
nell V. Merguire, 131 Cal. 527, 82 Am. St. Rep. 389, 65 Pac. 847: Short
V. State, 79 Ga. 550, 4 S. E. 852; Rawles v. Jackson, 104 Ga. 593, 69
Am. St. Rep. 185, 30 S. E. 820; Hernandez v. Drake, 81 III. 34;
Wooters v. Joseph, 137 111. 113, 31 Am. St. Rep. 355, 27 X. E. 80.
An execution otherwise regular "was signed 'M. C. Haley, Clerk,
by B. D, Dougherty, Deputy Clerk,' and not by C, F. Curry, who was
the clerk at the date of the alleged execution. Haley was a former
clerk, and his signature, 'M. C. Haley, Clerk,' was in print; and
it was admitted that Dougherty was the deputy of Curry, as he hail
been also of Haley." The question presented was whether this
execution was valid and sufficient to confer power on the sheriff
to sell and convey lands. The court said: "The question, we think,
admits of an obvious answer. The power of amendment, however
extensive it may Ije, is limited to the amendment of the writs of the
court, which can be authenticated only, under provisions of the law
similar to ours, by the subscription of the clerk. Without tliis tlieri'
is nothing 'which the judge can affirm' is an execution 'issued upon
judgment produced.' Under the ancient practice, where the seal of
the court was in the custody of a particular officer and sedulously
guarded, and when seals were habitually used for the purpose of
authenticating instruments, a seal alone may have been sufficient to
authenticate an executiou — as in fact was the case in the kinir's
bench — though in the more modern court of common pleas the sig-
558 American State Eepoets^ Vol. 101. [Montana,
nature of the prothonotary was required. But in modern times the
seal has lost its significance, and cannot be regarded as a sufficient
authentication without the signature of the officer affixing it. Whether
both seal and subscription of the clerk — as required by the code —
be essential, is a question about which the authorities differ, and
which it is unnecessary, in this case, to determine. But we are of
the opinion that the seal by itself is insufficient, and that the sub-
scription of the clerk is an essential part of the writ, without which
there is no execution to be amended": O'Donnell v. Merguire, 131
Cal. 527, 82 Am. St. Eep. 389, 63 Pae. 847.
IX. Amending by Affixing Seal. — There are authorities of a
very high character (Weaver v. Peaslev, 163 111. 251, 54 Am. St.
Eep. 469, 45 X. E. 119; Gordon v. Bodwell, 59 Kan. 51, 68 Am. St.
Eep. o41, 51 Pac. 906; Frankhouser v. De Witt, 9 Kan. App. 636, 58
Pac. 1027), affirming that the affixing of the seal of the court is
essential to the validity of the original writ. Where this view is
sustained, a motion to amend by affixing the seal would be unavail-
ing, for no amendment could operate to the extent of giving life to
a writ which theretofore was dead in law. But where this view is
not maintained, the seal of the court, having been omitted at the
issuing of the writ, may afterward be affixed as an amendment:
Bridewell v. Mooney, 25 Ark. 524; Hall v. Lackmond, 50 Ark. 113,
7 Am. St. Eep. 84, 6 S. W. 510; Hunter v. Burnsville T. Co., 56 Tnd.
213; Warmonth v. Dryden, 125 Ind. 355, 25 X. E. 433; Arnold v.
Nye, 23 Mich. 286; Sawyer v. Baker, 3 Greenl. 29; Kipp v. Burton (the
principal case), 29 Mont. 96, ante, p. 544, 74 Pac. 85; Taylor v. Court-
ney, 15 Neb. 190, 16 N. W. 842; Dominick v. Backer, 3 Barb. 17; Pur-
cell V. McFarland, 1 Ired. 34, 35 Am. Dec. 734; Clark v. Hellcn, 1 Ired.
421; Corwith v. State Bank, 18 Wis. 560, 86 Am. Dec. 793; Davelaar v.
Schenck, 110 Wis. 470, 86 N. W. 185. It is scarcely necessary for us
to add that, in our judgment, if there be any occasion which more
than any other justifies the amendment of an execution, it is when it
is in other respects in substantial conformity to the law, but the clerk
has omitted to impress upon it the seal of the court. From a mere
inspection of the writ and of the statute, there can be no doubt
what omission has occurred and what will supply it. The writ being
a judif'ial writ, the court should at once, on its attention being called
to the matter, direct of its own motion that the clerk perform, nunc
]iro tunc, the duty so unquestionably resting upon him when lie is-
sued the writ.
X. The Time Within Which an Execution may be amended has
no limit. A sale of property may have been made under exe-
cution, and for years may have been confirmed by the silent
acquiescence of all the parties in interest. After time has thus
elapsed, the execution mav for the first time be made subject to
objection for some amendable informality. In such a case, the court,
irrespective of the lapse of time, will either disregard the informality
Nov. 1903.] Kipp V. Burton. 659
or order the execution to be amended. At all events, the mere lapse
of time does not of itself interpose any obstacle to the amendment,
and may even constitute an additional reason for directing it to be
made. We have already shown that the power to amend is one
which will be exercised in the furtherance of justice. The fact that
the defendant in the writ has permitted it to be enforced without
objection and that he or third persons, at a distant day, seek to
avoid its effect by suggesting some error in its form or issuing is, of
itself, a reason for granting, rather than of withholding, leave to
amend, and certainly but few courts will reward his or their laches
by denying relief: Holmes v. Williams, 3 Caines, 98; Adams v. Hig-
gins, 23 Fla. 13, 1 South. 321; Lewis v. Lindley, 28 111, 147; Bybee v.
Ashby, 2 Gilm. 151, 43 Am. Dec. 47; Vogt v. Ticknor, 48 N. H. 242;
Phelps V. Ball, 1 Johns. Cas. 31; Galloway v. McKeithen, 5 Ired. 12,
42 Am. Dec. 153; Siekler v, Overton, 3 Pa. St. 325; Giles v. Pratt, 1
Hill (S. C), 239, 26 Am. Dec. 170; Sabin v. Austin, 19 Wis. 421.
Among these few are the courts of Texas. They make a distinction,
which they nowhere clearly explain, between what they style amend-
ments in matters of form and amendments in matter of substance;
and hold, with respect to matters of substance, that amendments will
not be authorized after a sale has been made under a writ. They
insist that when a writ is substantially defective, any sale thereunder
probably resulted in a sacrifice of the defendant 's property through
its realizing but an inadequate price, because prudent persons de-
clined to compete at a sale likely or surely to be declared invalid.
This result must follow decisions like those in that state, but if
they had, on the other hand, sustained the right to amend writs in
proper cases after sales made thereunder, the evil they seek to avoid
would not have been called into being. Among the writs held in this
state to be nonamendable after a sale thereunder, because of de-
fects in matter of substance, were an excution against P. B. C. on a
judgment against J. P. C. (Battle v. Guedry, 58 Tex. Ill); against
C. B. and Wm. H. on a judgment against C. B. and H. W. V. H.
(Morris v. Balkham, 75 Tex. Ill, 16 Am. St. Eep. 874, 12 S. W. 970);
and an execution commanding the sale of the property of the executors
named therein when the judgment authorized the sale of the prop-
erty of the estate in their hands as such executors: McKay v. Paris
E. Bank, 75 Tex. 181, 16 Am. St. Eep. 884, 12 S. W. 529,
XI. The Effect of Amending an Execution is generally to give
the writ the same operation as if originally issued in due form:
Ware v. Kent, 123 Ala. 427, 82 Am. St. Eep. 132, 26 South. 208;
Hall V. Lackinond, 50 Ark. 113, 7 Am. St. Eep. S4, 6 S. W. 510; Adams
V. Higgins, 23 Fla. 13, 1 South, 321; Saunders v. Smith, 3 Ga. 121;
Lewis V. Lindley, 28 111. 147; Durham v. Heaton, 28 111. '.-'64, 81 Am.
Doc. 275; Den v. Lecony, 1 Coxe (N, J. L.), Ill; Morse v, Dewey,
S' N. II. 535;. Abels v. Westervelt, 24 How. Pr. 284; Portor v. Goodman,
1 Cow. 413; Jackson v. Anderson, 4 Wend. 474; Suydam v. McCoon,
560 American State Reports, Vol. 101. [Montana,
Coleman's Cases, 59 (*64); Phelps v. Ball, 1 Johns. Cas. 31; Cherry
V. Wollard, 1 Ired. 438; Cluggage v. Duncan, 1 Serg. & E. Ill; Sick-
ler V. Overton, 3 Pa. St. 325; Treasurers v. Bordeaux, 3 McCord, 142;
Toomer v. Purkey, 1 Mill Const. 323, 12 Am. Dec. 634; McCormack
V, Melton, 1 Ad. & E. 331; Hunt v. Kendrick, 2 W. Black. 836; Thorpe
V. Hood, 1 Dowl. P. C. 501; Mackie v. Smith, 4 Taunt. 322. Unless
this were the case, the amendment would accomplish no useful pur-
pose. If an officer is sued for not executing a writ or for negligence
in its execution, it may be amended pending that action or during
the trial: Hargrave v. Penrod, Breese, 401, 12 Am. Dec. 201. If a
sale has taken place, the writ may be amended, and as amended may
ever thereafter be offered in support of such sale: Lewis v. Lindley,
28 111. 147; Durham v. Heaton, 28 111. 264, 81 Am. Dec. 275; Jackson
V. Anderson, 4 Wend. 474. If the action is for false imprisonment,
the defendant may have the ca. sa. under which he acted amended
to conform to the judgment on which it issued, and then justify under
the writ as amended: Holmes v. Williams, S Caines, 98. The same
action may be taken and the same result accomplished where the
defendant is sued for trespass in levying the writ: Porter v. Good-
man, 1 Cow. 413.
In many instances the amendment of an execution may properly
be described as having no effect whatsoever. When the amendment
is to cure a clerical error or defect obvious from the record, or, in
other words, where the record discloses the error and supplies the
data for its correction, no formal amendment is necessary, and the
writ will, in all collateral proceedings, be treated as amended: Hunt
V. Loucks, 38 Cal. 372, 99 Am. Dec. 404; Durham v. Heaton, 28 111.
264, 81 Am. Dec. 275; Corthell v. Egery, 74 Me. 41; Den v. Lecony,
1 Coxe (N. J. L.), Ill; Morse v. Dewey, 3 N. H. 535; Wright v.
Nostrand, 94 N. Y. 32; Sheppard v. Bland, 87 N. C. 163; Cluggage
V, Duncan, 1 Serg. & R. Ill; Portis v. Parker, 8 Tex. 23, 58 Am. Dec.
95; Corwith v. State Bank, 18 Wis. 560, 86 Am. Dec. 793; Griswold
V. Connolly, 1 Woods, 193, Fed. Cas. Xo. 5833.
It is true, there arc some cases treating the amendment of an exe-
cution as a matter within the discretion of the court, to be granted
or refused according to its notions of justice: Hayford v. Everett,
68 Me. 505. If this view were correct, then we do not understand
how a writ can be treated as amended in advance of an order au-
thorizing its amendment, for prior to that time it cannot be known
how tlic discretion will be exercised. But where the anicndnieTit is
proper, we conceive that its allowance is not a matter of diserotion.
There being a valid judgment and a writ obviously issued upon it,
though tainted liy some mere clerical omission or defect, it is the
duty of the court to give due effect to such judgment and writ and
all priiceedings based thereon, at least until some direct motion or
proceeding is taken to qiuish tlie writ or ]>rofoedings for irregularity,
and even then the better practire is to amend tlie writ and purge it
Nov. 1903.] Kipp V. Burton, 561
■of the irregularity rat&er than to destroy it, and annul the pro-
ceedings taken for its enforcement: Freeman on Executions, sec. 78;
Cheney v. Beall, 69 Ga. 533; but in this state the code provides that
the amendment of an execution avoids a previous levy thereunder:
Beasley v, Bowden, 58 Ga. 154; Jones v. Parker, 60 Ga. 500.
As a consequence of the general principle that void writs are not
amendable, the court, in determining whether leave shall be granted
to amend a writ, must consider or determine whether or not it is
void. Hence, an order granting leave to amend is necessarily an ad-
judication that the writ is amendable and not void. Therefore, if
such an order has been made and the writ has been amended in con-
formity therewith, all persons over whom the court had jurisdiction in
making the order are bound by it, and are no longer at liberty to
assert that the writ is void, and cannot sustain sales made, or other
proceedings taken under it: Adams v. Higgins, 23 Fla. 13, 1 South.
321.
XII. The Effect of Not Amending an Execution is apparent
from the principles stated and the authorities cited in the pre-
ceding paragraphs. If leave to amend is not sought and obtained,
the plaintiff and others claiming under the writ have not the ad-
vantage resulting from the determination of the court that the
writ is amendable, and may therefore sustain sales made under it.
In other words, this question remains an open one. Those claiming
that the writ is amendable are, however, at liberty to urge their
claim in any proceeding in which it may be material, and if they
satisfy the court that such is the case, the writ will usually be ac-
corded the same effect as if it had been amended upon leave granted
therefor: De Loach v. Eobbins, 102 Ala. 288, 48 Am. St. Eep. 46, 14
South. 777; Adams v. Higgins, 23 Fla. 28, 1 South. o21; Anderson v.
Gray, 134 111. 550, 23 Am. St. Eep. 696, 25 N. E. 843; Corthell v.
Egery, 74 Me. 41; Don v. Lecony, 1 N". J. L. Ill, 131; Sabin v. Austin,
19 Wig. 421. From this rule motions and other proceedings to quash
or recall the writ must be excepted. Upon the hearing of such a
motion, the court, though of the opinion that the writ is amendable,
may also reach the conclusion that justice will be promoted by
quashing or recalling it, and may therefore grant the motion instead
of directing an amendment. It is therefore advisable in all cases
where a writ is found to be infected by amendable defects to pro-
cure an order granting leave to remove them by an amendment, for
by such order the plaintiff and those claiming under him are pro-
tected from the perils attendant upon a motion to quash it, and are
secured the advantage of the adjudication involved in the order, to
the effect that the defects in question are amendable in their char-
acter.
XIII. Persons Against Whom Amendments may be Made. — In
quite a number of cases the general declaration is made that
an amendment of a writ will not be ordered when it will pre-
Am. St. Ben. Vol. 101—36
5G3 American State Reports, Vol. 101. [Montana^
judice the interests of third persons: Cape Fear Bank v. Williamson,
2 Ired. (24 N. C.) 147; Ohio L. I. Co. v. Urbana Ins. Co., 13 Ohio, 220;
Brooks V. Hodson, 7 Man. & G. 529, 8 Scott N. K. 223; Hunt v. Pas-
man, 4 Maule & S. 329; Phillips v. Tanner, 6 Bing. 237, 3 Moore & P.
562; Levett v. Kibblewhite, 6 Taunt. 483; Webber v. Hutchins, 8 Mees.
& W. ol9; Johnson v. Dobell, 1 Moore & P. 28. On examining these
eases, it will generally be found that the third persons against whom
the court refused to authorize an amendment were not in a situation
entitling them to any partiality from the court. They were, in most
cases, either the assignees in bankruptcy of the defendant or his
personal representatives, the assignment on the one hand and the
defendant's decease on the other having taken place subsequently
to the issuing of the writ sought to be amended. Neither the as-
signees nor representatives were purchasers for value, nor, in any
respect, the holders of any special equities; and, being the mere
successors of the defendant's interests, we cannot understand why
they were in condition to resist anything to which his resistance, if
made prior to the assignment or decease, would have been unavail-
ing. But conceding the rule to be too well established by authority
to be overthrown by argument, we conceive that it must be given
a very restricted application, and must be confined to those instances
where a motion to quash the writ is promptly made, and where no
one but the plaintiff can be injured by refusing the amendment.
There are two classes of third persons whose interests may be af-
fected by a proposed amendment, namely, those who have derived
title from the defendant, and are therefore interested in avoiding
the writ; and, secondly, those who have made purchases and are
deraigning title by aid of the writ, and therefore interested in main-
taining its validity. The latter class will no doubt be protected by
amending the writ, if it be amendable. In fact, it seems, so far as
their interests are involved, superflous to order an amendment; for
where an amendment is proper, it will, in collateral proceedings, be
treated as if actually made: Hunt v. Loucks, 38 Cal. 372, 99 Am. Dec,
404; Durham v. Heaton, 28 111. 264, 81 Am. Dec. 275; Cooley v.
Brayton, 16 Iowa, 10; Williams v. Brown, 28 Iowa, 247; Morrell v.
Cook, 31 Me. 120; Doe v. Gildart, 4 How. (Miss.) 267; Den v. Lecony,
1 Coxe (N. J. L.), Ill; Owen v. Simpson, 3 Watts, 87; Morse v.
Dowoy, 3 N. H. 535; Toomer v. Piirkey, 1 Mill Const. 324, 12 Am.
Deo. 634; Ilubbcll v. Fogartie, 1 Hill (S. C), 167, 26 Am. Dec. 163;
Giles V. Pratt, 1 Hill (S. C), 239, 26 Am. Dec. 170; Stephens v.
White, 2 Wash. (Ya.) 203; Sabin v. Austin, 19 Wis. 421; Corwith v.
State Bank, 18 Wis. 560, 86 Am. Dec. 793. In determining whether an
amendment should be allowed against the objection of third per-
sons, an inquiry must be made whether such persons had any actual
or constructive notice of the facts upon which the claim to the amend-
ment is based. If, by inspecting the whole record in the case, they
could have ascertained that the prciposed amendment would be au-
Nov. '03.] Ancient Order of Hibernians v. Sparrow. 563
thorized, they must be regarded as charged with constructive no-
tice, and as holding their interest in subordination to the right of
amendment: Fairfield v. Paine, 23 Me. 498; Eollins v. Rich, 27 Me.
557. "The subsequent purchaser or creditor being chargeable with
constructive notice of what is contained on the record — if he has
there sufficient to show him that all the requisitions of the statute
have probably been complied with, and he will, notwithstanding, at-
tempt to procure a title, under the debtor — he should stand charge-
able with notice of all facts the existence of which is indicated and
rendered probable by what is stated in the record, and the existence
of which can be satisfactorily shown to the court. And in such cases
amendments should be allowed, notwithstanding the intervening in-
terests of such purchaser or creditor": Whitter v. Varney, 10 N. H.
303,
ANCIENT OEDER OF HIBERNIANS v. SPARROW.
[29 Mont. IS'2, 74 Pac. 197.]
STATUTES Borrowed from Other States — Constmction. —
Courts will not follow the construction given a statute by the court
of a state from which such statute is borrowed, when such decision
does not appear to be founded on right reasoning, (p. 565.)
ATTACHMENT. — A Bond Conditioned to be Void if the prin-
cipal therein performs his contract is not a contract by the sureties
for the "direct payment of money" within the meaning of a statute
authorizing an attachment in an action upon such a contract, (pp.
567, 568.)
T. O'Leary and H. R. Whitehill, for the appellant.
G. B. Winston and Rogers & Rogers, for the respondents.
133 HOLLOWAY, J. On November 16, 1898, the Ancient
Order of Hibernians, Division No. 1, of Anaconda, Montana,
entered into an agreement with Edward B. White, a contractor
and builder, by the terms of which White agreed to furnish
the materials and erect a building for the order in Anaconda,
for which he was to be paid the sum of thirteen thousand five
hundred and seventy-five dollars, the building to be completed
prior to December 1, 1898, and all the work to be done ac-
cording to plans and specifications which were furnished. For
the faithful performance of that contract White executed his
indemnity bond in the sura of three thousand five hundred dol-
lars, with respondents Sparrow, Wegner, Raderfeld and Thiefen-
thaler as sureties, the condition of the undertal^ing being that,
5G4: American State Eeports, Vol. 101. [Montana,
"if the said Edward B. "Uliite shall in all things comply with
the contract in letter and spirit, and turn over to the said An-
cient Order of Hibernians, Division Xo. 1, of Anaconda, the
said building fully finished and completed in all its parts in
strict compliance with the said plans and specifications, ....
then the above obligation to be void, otherwise to remain in full
force and virtue."
The complaint alleges tliat, altliongh White entered upon the
work and performed a part of it, he abandoned the same before
it was completed, and that the appellant was compelled to com-
plete the same at a cost of more than four thousand five hun-
dred dollars over and above the contract price of the building.
The complaint then alleges that prior to the commencement of
this action this appellant recovered ^^^ a judgment against
White for the breach of said contract in the sum of five thou-
sand four hundred and forty dollars, and that White was soon
afterward adjudged a bankrupt without assets. The prayer of
the complaint is for the full amount of the bond.
At the time of the commencement of tliis action and the issu-
ance of summons, upon a proper affidavit being made and the
undertaking required by law being given, the clerk of the dis-
trict court issued a writ of attachment under which the sheriff
of Deer Lodge county levied upon property belonging to the
defendants. Thereafter the defendants appeared, and moved
the court to discharge the attachment upon the ground, among
others, tliat the action is not founded upon a contract for the
direct payment of money within the meaning of sections 890
and 891 of the Code of Civil Procedure. This motion was by
the court sustained, and the attacliment dissolved. From the
order dissolving the attachment this appeal is prosecuted.
Section 890 of the Code of Civil Procedure provides as fol-
lows : "Sec. 890. The plaintiff, at the time of issuing the sum-
mons, or at any time afterward, may have the property of the
defendant attached, as security for the satisfaction of any judg-
ment that may be recovered, .... as follows: In an action
upon a contract, express or implied, for the direct payment of
money.
Without question this is an action upon an express contract,
and the only difficulty to be met with is in the proper construc-
tion of the phrase "for the direct payment of money."
So far as we are advised, California and Oregon are the only
other states having the same statutory provision. Colorado had
prior to 1895. Sections I'^O and 121 of the California Practice
Nov. '03.] Ancient Order of Hibernians v. Sparrow. 565
Act. (Stats. 1851, p. 68, c. 5; Code Civ. Proc. 1897, sees. 537,
538) contain the same provisions as our section 890, above, and
those sections received construction by the supreme court of
California in Hathaway v. Davis, 33 Cal. 161, where by a di-
vided court it was held that an ordinary appeal bond was a
contract for the direct payment of money within the meaning
of sections 120 and 121, above. However, the majority of the
*^^ court characterized its own opinion as not being very satis-
factory. This decision was made the sole ground for holding
that a bail bond was likewise a contract for the direct payment
of money (City and County of San Francisco v. Brader, 50
Cal. 506), and upon the authority of these two cases the same
court, in County of Monterey v. McKee, 51 Cal. 255, held the
oilicial bond of the county treasurer was such a contract as is
contemplated by the attachment statute.
It is contended by appellant that under the rule of construc-
tion that, where a statute is adopted from another state by this
state, it is adopted with the construction given it by the highest
court of that state, the decision in Hathaway v. Davis, 33 Cal.
161, IS conclusive in this instance. - -
It may be true, as assumed by counsel for appellant, that our
section 890 above was borrowed from California, and yet that
is only an assumption, as there is nothing whatever to indicate
tliat it is a fact. The expression "for the direct payment of
money" does not appear in our attachment laws from January
15, 1869, to the adoption of the code in 1895, at which latter
date at least two other states had substantially the same statu-
tory provision as California. However, this court will not
l)liiidly follow the construction given a particular statute by
the court of a state from which we borrowed it, when the de-
cision does not appeal to us as founded on right reasoning.
We understand the rule to be "that the construction put upon
statutes by the courts of the state from wliich tliey are borrowed
is entitled to respectful consideration, and that only strong rea-
sons will warrant a departure from it" (Endlicli on ]nter])rcta-
lion of Statutes, sec. 371; Olcson v. Wilson, 20 Mont. 544, 63
.\m. St. Eep. 639, 52 Tac. 372) ; or, as was said in Stadler v.
First National Bank, 22 Mont. 203, 74 Am. St. Rep. 582, 56
Pac. 114: "When a particular statute has boon arlopter] by this
state from the statutes of another, after a judicial interpretation
(suited to our condition) has been placed upon it by the parent
state, the courts of this state are bound by the interpretation
of tiie courts of the state whonco it was adopted, or will ^^^
566 Americax State Eeports, Vol. 101. [Montana,
at least accord respectful consideration to such interpretation,
and depart from it only for strong reasons."
Prior to 1895 Colorado had an attachment statute which pro-
vided that tlie writ should issue upon the plaintiH" making an
affidavit ''that the action is brought upon an overdue promissory
note, bill of exchange, or other written instrument for the direct
and unconditional payment of money only or upon an overdue
book account": Mills' Ann. Code, sec, 92. This section received
consideration in Ilurd v. McClellan, 14 Colo. 213, 23 Pac. 792,
which was an action upon an appeal bond, and reference is there
made to the case of Hathaway v. Davis, 33 Cal. 161, above, and
the majority opinion disapproved. The supreme court of Colo-
rado, after hokling that such appeal bond does not come within
the purview of section 92, above, says: "In this case the obli-
gation assumed by the sureties was not direct, but collateral.
They could be charged only upon the failure of the principal to
pay. If he failed to pay the judgment appealed from, if
affirmed by this court, then there would be a breach of the con-
dition of the bond upon which a cause of action might be predi-
cated."
In People v. Boylan, 25 Fed. 595, Hallett, J., in construing
the above section of the Colorado code in an action upon an
administrator's bond, says: "A direct payment is one which ii
absolute and unconditional as to time, amount and the persons
by whom and to whom it is to be made. And a written in-
strument wliich provides for such payment is one which expresses
those terms fully. It is needless to point out the dili'crence l)e-
tween such an instrument and an administrator's bond." Com-
menting on tlie majority opinion in Hatl)away v. Davis, 33 Cal.
161, Judge Hallett says: "It is to be observed, also, that in
the only case cited from that state (California) in which tlie
question was discussed, tlie views expressed were not altogetlier
satisfactory to the court. And the o])Jnion will hardly be more
convincing to the profession than it was to the court."
In Hathaway v. Davis, 33 Cal. 161, above, Sawyer, J., dis-
senting, says: "The undertaking upon wliich a recovery is
souglit is 'that the ^**'' appellants will pay all damages and
costs wliich may be awarded against defendant on the appeal,
not exceeding three hundred dolhars.' Tliis a])pears to me to
1)0 an undertaking that another party sliall pay, and not that
the party himself will pny. Tliero is no promise that the de-
fendants themselves will pay any money at all, and consequently
no contract on their part for the direct payment of money. On
IN'ov. '03.] Ancient Ohder of Hibernians v. Sparrow. 5G7
a failure of the appellants in the suit to pay in accordance with
the terms of the undertaking, there is a breach, it is true, and
the party to the undertaking is liable for damages for the breach.
But the liability is strictly for damages, and not on his own
•contract that he himself will pay money. For these reasons I
think there was no contract, express or implied, on the part of
the defendant for tht,' direct payment of money within the mean-
ing of the attachment law, and that an attachment is unauthor-
ised." It is to be noted that this dissenting opinion is quoted
with approval in Hurd v. McClellan, 14 Colo. 213, 23 Pac.
792.
The Code of Civil Procedure of New York (section 635) pro-
vides for the issuance of an attachment ''in an action to recover
a sum of money only as damages for a breach of contract, ex-
press or implied," and section 649 provides the manner of levy-
ing the writ. Construing these sections, the supreme court, in
Trepagnier & Bros. v. Pose, 18 App. Div. 393, 46 N. Y. Supp.
397, said: "But we are clear that, to be an instrument for the
payment of money, it must be an instrument wbich acknowledges
an absolute obligation to pay, not conditional or contingent;
one, the execution of which being admitted, it would be incum-
bent on the plaintiff, in an action to enforce it, only to offer
the instrument in evidence to entitle him to a recovery — in
other words, an instrument that admits an existing debt. ^Ye
think that this is the correct line which divides such instruments
from other written contracts which contain obligations on tlio
part of one party or the other to pay money, such as agreements
of sale, hiring, leases, building contracts, etc."
One of the definitions given in Webster's Dictionary for the
word "direct" is "immediate; express; unambiguous; confessed;
absolute" ; and it does seem that, if the term is to be ^^* given
any meaning, as used in our attachment statute, it must dis-
tinguish a particular class of contracts for the payment of money
from all otlier contracts for the payment of monev. In other
words, that class of contracts which provide for the direct pay-
ment of money must differ somewliat from all other contracts
for the payment of monc}', or the term "direct" has no mean-
ing whatever.
The term first appeared in our attaclimont statute in 186G :
Act Third Leg. Assem., approved Dec. 3, 1866, p. 62, c. 12. sec.
1. These legislative enactments were annulled by act of Con-
gress: 14 Stats, at Large, 427. Practically the same provision
5G8 American State Reports, Vol. 101. [Montana,
was re-enacted by the fourth legislative assembly: Laws 1807,
p. 156. This act was amended by act of tifth legislative session,
approved January 15, 1869 (Laws 1869, p. 64), and the word
'"direct" omitted, and it does not re<appear until 1895, when
its re-enactment into our laws must be prt^umed to have been
done for a purpose, viz., to limit the operation of the writ of
attachment. Before 1895 an attachment could be had in every
action upon a contract, express or implied, for the payment of
mono}-, where the debt was not secured. Since then the writ
can only issue in those cases arising on contracts, express or
imjilicd, for the direct payment of money, and, applying th.e
definitions of the term "direct"' as given above, the obvious in-
tention of the legislature can be made plain. The contracts
now contemplated by section 890, above, are such only as re-
quire the payment unconditionally and absolutely of a definite
sum.
As the sureties to the undertaking under consideration became
liable only on condition that their principal. White, defaulted
in the performance of his contract, and then only for such sum
as the indemnified party might recover as damages for the
breach (not exceeding the sum mentioned in flie bond), we are
of the opinion that the bond sued upon is not such a contract
as is contemplated in section 890, above, and that the attach-
ment was properly discharged.
The order discharging the attachment is affirmed.
If a ^tutnte After Its Consti-uctidn by the courts of the state -vN-hore
it originated, is acloptej as a statute by aiiotlicr state, such con-
struction usuallv will be followed in the courts of the latter: Black
V. State, 113 Wis. 205, 90 Am. St. Eep. 853, 89 N. W. 522; Coad v.
Towhick, 9 Wvo. 316, 87 Am. St. Kep. 953, 63 Pac. 584; In re O'Con-
nor. 21 R. I. 465, 79 Am. St. Kep. 814, 44 Atl. 591; Ives v. Mc^^ico]l,
59 Ohio St. 402, 69 Am. St. Rep. 780, 53 N. E. 60, 43 L. R. A. 772;
Cowhick V. Shinorle, 5 Wyo. 87, 63 Am. St, Rep. 17, 37 Pac. 689, 25 L.
R. A. 60S; Laporte v. Fire Alarm Tel. Co., 146 Ind. 466, 58 Am. St.
Rep. 359. 45 N. E. 588, 35 L. R. A. 686; Rouse v. Donovan, 104 Mich.
2;;4, 53 Am. St. Rep. 457, 62 X. W. 359, 27 Jj. R. A. 577; Nicollett
Nat. ISaiik v. City Pank, 3S Minn. 85, 8 Am. St. Rep. 643, 35 N. W.
5 77. T'.ut it will not bo permitted to prevail when not in harmony
\vitli the spirit and policy of the loj^nslation and decisions of the
ad<.ptin<,' state: Oleson v. Wilson, 20 Mont. 544, 63 .'\m. St. Re[). 039,
52 Pac. 372; Pratt v. Miller, 109 Mo. 78, 32 Am. St. Rep. 656, lb S.
W. 965.
A Writ of Mtdchitu nf can have no force unless issued in an action
on a contract exftruss or implied: Mudac v. Steinert, 78 Cal. 34, 12 Am.
St. Rep. 17, 20 Pac. 147. As to what is a contract within the meaning
of this rule, see ^fainz v, Lederer, 24 R. T. 23, 96 Am. St. Rep. 702,
51 Atl. 1044; Wattles v. Wjivne Circuit Judge, 117 Mich. 662, 72
Am. St. Rep. 590. 76 X. W. 115.
Jan. 1904.] Poetek v. Plymouth Gold Mining Co. 569
POETEE V. PLYMOUTH GOLD MINING COMPANY.
[29 Mont. 347, 74 Pac. 938.]
APPELLATE PRACTICE— Notice of Appeal.— If the bill of
exceptions recites service of notice of appeal upon counsel for the
respondent and his acknowledgment thereof, a contention that ser-
vice of such notice does not appear from the record is without merit,
(p. 571.)
APPELLATE PHACTICE — Notice of Appeal. — A contention
that the record does not contain the notice of appeal and judgment-
roll properly certified is without merit, if the appellant has procured
a new certificate from the clerk of the lower court, reciting that
the record contains "full, true and correct" copies of the judgment-
roll and notice of appeal, to which no objection is made. (p. 571.)
CORPORATIONS— Contract for Sale of Stock, — If a corpora-
tion contracts to sell stock and agrees that at a certain time thereafter
the purchaser shall be entitled to return the stock upon the hap-
jiening of a designated event, the corporation cannot claim that the
sale was valid, and the contract to repurchase void, without rescinding
the sale, returning the purchase money, and placing the purchaser in
statu quo. (p. 573.)
CORPORATIONS— Right to Purchase Their Own Stock.— A pri
vate corporation may purchase its own stock if the transaction is fair
and in good faith, free from actual or constructive fraud, provided
the corporation is not insolvent, or in process of dissolution, and that
the rights of its creditors are in no way aftected by the purchase,
(pp. 573, 574.)
CORPORATIONS— Right to Purchase Stock — Decrease of
Stock. — The mere repurchase of its capital stock by a private corpora-
tion does not tend to decrease its capital stock, unless the directors
absolutely merge or extinguish such stock after its repurchase, (p.
574.)
CORPORATIONS — Contract for Repurchase of Stock — With-
drawal of S'Ubscription. — A contract by which a private corporation
agrees to sell stock and to repurchase upon the happening of a cer-
tain event, is not ultra vires or void, as a secret contract between
the corporation and a subscriber, by which such subscriber is at
libertv to withdraw his subscription, but is valid and enforceable,
(p. 575.)
CORPORATIONS— Purchase of Stock. — A purchaser of the
stock of a private corporation under a contract entitling him to re-
convey to the corporation upon the happening of a certain event,
and to receive the price paid, cannot compel the corporation to re-
purchase the stock, without a redelivery of it to the corporation,
(p. 576.)
CORPORATIONS— Option to Repurchase Stock.— If an option
to repurchase coporate stock is to be exercised "at the expiration
of six months from date," tlie seller is not bound to repurchase until
the expiration of the six months, and an offer to redeliver the stock be-
fore that time is premature, and ineffective, (pp. 576, 577.)
CORPORATIONS— Repurchase of Stock.— The fact that the
buyer of corporate stock is "ready and willing" to return it in
accordance with a contrnr-t for its repurchase, does not constitute
an offer to return such stock, (p. 577.)
570 AiiERiCAN State Eeports, Yol. 101. [Montana,
APPELIiATE PRACTICE— Disposal of Demurrer.— If a do-
murrer to a complaint has been sustained, on the ground that the
complaint does not state a cause of action, the judgment entered there-
on must be sustained on appeal, if the appellate court concludes that
such demurrer should have been sustained on some other ground, al-
though such ground was not suggested to the appellate court, and
although the lower court may have sustained the demurrer for a
wrong reason, (p. 577.)
ATTACHMENT cannot be Maintained upon a complaint which
does not state facts suflBcient to constitute a cause of action, (p.
578.)
S. A. Ballict, for the appellant.
Walsli & Xewman, for the respondent.
3^3 CLAYBEilCl, C. Appeal from final judgment and from
an order dissolving attachment.
The material allegations of the complaint are, briefly, as fol-
lows: That on the twenty-third day of May, 1900, appellants
and respondent entered into a contract whereby respondent
agreed to sell appellants four thousand shares of the capital
stock of the respondent company at the price of two thousand
dollars; that appellants purchased the same, and paid the con-
sideration therefor to respondent; that at the same time this
purchase was made the respondent agreed in writing with the
appellants that if, the expiration of six months from the date
of the sale, appellants should become dissatisfied with the stock,
or with its earning power as an investment, they should be en-
titled to return the said stock to said respondent upon notifying
respondent of tlieir intention so to do, and that the respondent
should relieve them of all liability thereon, and repay to them
the said two thousand dollars, with interest at eight per cent
from date of payment; that on or about Septcml)(>r 13, 11300,
appellants became dissatisfied with the stock and its earning
power as an investment, and notified respondent of their con-
clusions, and of their intention to return the stock to respond-
ent and demand the payment of the sum of two thousand dol-
lars and interest. The complaint continues: "And at said datt^
the said James Porter and George Swan did demand of said
Plymouth Gold Mining Company of Gould. j\rontana, the pay-
ment of the said two thousand dollars, with interest, as afore-
said, and did '^''^ offer to return the stock of said Plymouth
Gold ]\Iining Company in accordance with the terms of said
agreement. Plaintiffs further state that ever since said date
they have been ready and willing to receive payment of said
two thousand dollars (-S^jOOO) and interest aforesaid upon the
Jan. 1904.] Porter v. Plymouth Gold Mining Co. 571
same from the twenty-third day of May, 1900, and ever since
said thirteenth day of September, 1900, have been ready and
willing to deliver said stock to said company in accordance with
eaid agreement."
Eespondent demurred on the ground that the complaint did
not state facts sufficient to constitute a cause of action. The
court below sustained this demurrer. Appellants standing on
their complaint, judgment was entered in favor of defendant.
Upon the filing of the complaint and issuance di summons
in this case appellants caused an attachment to issue against
the property of respondent. Eespondent made a motion to dis-
solve the attachment, which motion was heard at the same time
as the hearing of the demurrer. The court dissolve the attach-
ment, and appellants also appeal from said order of dissolution.
On the day of the hearing of these appeals counsel for re-
spondent presented a motion for their dismissal, based on the
three following grounds, viz. : 1. Because the record does not
disclose that the notice of appeal was served upon respondent;
2. Because the record does not contain the notice of appeal
properly certified; 3. Because it does not appear from the cer-
tificace of the clerk of the court below that the record contains
the judgment-roll. On the hearing, permission was given ap-
pellants to correct the record so as to avoid the motion to dis-
miss, if the facts warranted it. Counsel for the appellants pro-
cured a new certificate of the clerk of the court below, which
now appears attached to the transcript, and by which tlie clerk
eertifies that the record contains "full, true and correct*' copies
•of the judgment-roll and notice of appeal.
There is no merit in the first ground of the motion. The
respondent does not object because there was no service of this
notice, but because it does not appear from the record that a
notice of appeal was served upon respondent. The bill of excep-
tions, ""^^ which is properly a part of the record, recites ser-
vice upon counsel for res}X)ndent, and shows their acknowledg-
ment of the same.
The second and tliird grounds of the motion, viz., that tlie
record does not contain the notice of a])pcal and judgment-roll
properly certified, have been removed by the new certificate or
the clerk of the court below, to which no objection has been
made.
We advise that the motion to dismiss the appeal be overruled.
We shall therefore consider the appeal upon its merits. The
first matter for consideration is the appeal from the judgment.
672 American State Reports, Vol. 101. [Montana,
and the first question to be decided is, Does the complaint state
facts sufficient to constitute a cause of action?
1. Counsel for respondent, in support of the judgment, in-
sists that the contract sued upon is ultra vires on three grounds :
(a) That a private corporation cannot purchase its own stock;
(b) that by such purchase its capital stock is decreased, in vio-
lation of section 438 of the Civil Code; (c) that by such pur-
chase a subscriber is secretly allowed to withdraw his subscrip-
tion. We shall discuss these reasons seriatim.
(a) May a private corporation purchase its own stock? Gen-
erally speaking, a corporation, when acting within the scope of
the purposes of its organization, has the same power to contract
with reference to such purposes as an individual. True, this
power must be exercised in the proper corporate manner, and by
the proper corporate officers. In this case, however, no question
is raised concerning the form or manner of the execution of
the contract sued upon. So we must assume that it was made
in the proper corporate manner, and by the proper corporate
officers. In tlie absence of a showing to the contrary, we must
also assume that the corporation held the stock in question for
sale just as it holds any other asset, and possessed the power of
disposition. We are therefore not concerned as to the manner
in which the corporation acquired the stock, or the character
of the stock itself. It is sufficient to know that it had the stock,
"^® the right to sell it, sold it, and received the purchase price
upon such sale.
Eespondent complains that the corporation did not stoj-> at
the sale of the stock and the receipt of the purcliase money, but
contracted to lake the stock back and return the purchase price,
with interest, upon the happening of certain events. This
agreement by the corporation is based upon the consideration of
tlie purchase of and payment for the stock by appellants, by
the express terms of the contract sued upon. Two ol)jects were
evidontlv in the minds of the conlracting parties at the time
this contract was entered into, which were sought to be accom-
] lished In- tlie contract, viz.. the sale of the stock and a coniract
for its repurcluise. The company desired to sell the stock; ap-
pellants desired to purchase the same. ])ut were unwilling to
do so without having the company bound by contract to repur-
clia-^e it upon the happening of certain events. The purchase
and payment of the purchase price was a consideration to the
company for its promise to repurchase the stock. There was
but one contract, viz., for the sale and repurchase of the stock.
Jan. 190i.J PoETER v. Plymouth Gold Mining Co. 573
each object being a consideration for the other. This contract
was entire and indivisible. The sale could not be sustained
unless the contract of repurchase could be enforced. Therefore,
if a portion of the contract is ultra vires, the whole contract
must fall. The corporation cannot be heard to say that the sale
was valid and tlie contract to repurchase was void without re-
scinding the sale and returning the purchase money, thus plac-
ing the other party in statu quo ante. The appellants have exe-
cuted the contract of purchase on their part by the payment of
the purchase price. The corporation therefore has received from
them something of value, which it would not have received ex-
cept for its contract of repurchase. It cannot be heard to say :
"'"True, 1 have received your two thousand dollars, which I
promised to return to you upon the happening of certain events,
but my promise in that regard was and is beyond my power to
enter into, and, although the contemplated events have occurred,
I will keep your money, and will not perform my contract."
^^' Such action, if allowed, would be reproach upon the law.
It is not honest or right, and right is the basic principle of all
law.
The following language of Judge Parker in Steam Xaviga-
tion Co. V. Weed, 17 Barb. 378, is very pertinent in this con-
nection: "I am happy to come to the conclusion that the law
will not sustain this most unconscionable defense. It ill be-
comes the defendants to borrow from the plaintiff one thousand
dollars for a single day, to relieve their immediate necessities,
and then to turn around and say, 'I will not return you this
money, because you had no power, by your charter, to lend it.'
Let them first restore tlie money, and then it will bo time enough
for them to discuss witli the sovereign power of the state o£
■Connecticut the extent of the plaintiff's chartered privileges.
We shall lose our respect for the law when it so far loses its
character for justice as to sanction the defense here attempted."
But this is somewliat of a digression, and is only stated as
illustrating the charaetor of the defense sought to be interposed
by the corporation. We shall now return to the question under
consideration.
We believe the rule to be well settled in the United States by
the overwhelming weight of authority and reason that a private
corporation may purchase its own stock if the transaction is
fair and in good faith; if it is free from fraud, actual or con-
structive; if the corporation is not insolvent, or in process of
•dissolution; and if the rights of its creditors are in no way
574 American State Eepoets, Vol. 101. [Montana,
afTccted thereby: Clapp v. Peterson, 104 111. 26; City Bank of
Columbus V. Bruce, 17 X. Y. 507; State v. Smith, 48 Yt. 266;
Williams v. Savage Mfg. Co., 3 Md. Ch. 418; Taylor v. Miami
Exp. Co., 6 Ohio, 177; Craudall v. Lincoln, 52 Conn. 73, 53
Am. Eep. 560; Chicago etc. E. E. Co. v. Marseilles, 84 IlL
145; Dupee v. Boston Water Power Co., 114 Mass. 37; St.
Louis Eaw'hide Co. v. Hill, 72 Mo. App. 142; Morgan v. Lewis^
4G Ohio St. 1, 17 N. E. 558; Yeaton v. Eagle Oil etc. Co.,
4 Wash. 183, 29 Pac. 1051; Chapman v. Ironclad etc. Co.,
G2 :^. J. L. 497, 41 Atl. 690; Blalock v. Kernersville Mfg. Co.,
110 N. C. 99, 14 S. E. 501 ; ^^ Howe Grain etc. Co. v. Jones,
21 Tex. Civ. App. 198, 51 S. W. 24; Chalteaux v. Mueller, 102
Wis. 525, 78 N. W. 1082 ; Eollins v. Shaver Wagon etc. Co., 80
Iowa, 380, 20 Am. St. Eep. 427, 45 N. W. 1037; Oliver v.
Eahway Ice Co., 64 N. J. Eq. 596, 54 Atl. 460; Eepublic Life
Ins. Co. V. Swigert, 135 111. 150, 25 N. E. 680, 12 L. E. A. 328;
First Nat. Bank of Peoria v. Peoria Watch Co., 191 111. 128, 60
N. E. 859; Xew England Trust Co. v. Abbott, 162 Mass. 148,
38 X. E. 432, 27 L. E. A. 271; West v. Averill Grocery Co.,
109 Iowa, 488, SO N. W. 555; Dock v. Schlichter Jute Co., 167
Pa. St. 370, 31 Atl. 656; Marvin v. Anderson, 111 Wis. 387,
87 X. W. 226; 1 Cook on Corporations, sec. 311.
Xo bad faith, unfairness, or fraud is charged against this
transaction. There is nothing tending to show that the corpora-
tion is insolvent, or in process of dissolution, or that any cred-
itors exist whose rights could be affected.
(b) Would the capital stock of the company have been re-
duced in violation of section 438 of the Civil Code by the pur-
chase of this stock?
Section 438 of the Civil Code provides as follows : "Directors
of corporations must not .... reduce or increase the capital
stock except as hereinafter specially provided." The mere re-
purchase of this stock would not tend to decrease the capital
.'^tock of the company, unless the directors should absolutely
merge or extinguish the stock after its repurcliase. The com-
pany could own and deal with it just the same as it had done
before the sale. It could be sold and issued again. The com-
pany would be in no difTorcnt position as to this stock than it
would have been had tiie transaction with appellants in regard
to it never occurred. When it is transferred to tlic company,
it becomes a part of its projXTty. It is there for the creditors
and stockholders. The capital stock is not decreased. A por-
tion of the capital of the company may be unavailable until the
Jan. 1904.] Portee v. Plymouth Gold Mining Co. 575
stock is again sold and issued, but nothing is destroyed. Whether
the stock is merged or extinguished or held as an asset for sale
is much a matter of intention on the part of the corporation.
^^^ If it is unlawful to decrease the capital stock, presump-
tively the directors did not violate the law. It would require
some positive showing to the contrary to overturn this presump-
tion. The following authorities lend sufficient support to this
position: 1 Cook on Corporations, sec. 313; Taylor v. Miami
Exp. Co., 6 Ohio, 177; City Bank of Columbus v. Bruce, 17
N. Y. 507 ; Williams v. Savage Mfg. Co., 3 Md. Ch. 418 ; Ex
parte Holmes, 5 Cow. 426; State v. Smith, 48 Vt. 266; Mor-
gan v. Lewis, 46 Ohio St. 1, 17 N. E. 558 ; Bank of San Luis
Obispo v. Wickersham, 99 Cal. 655, 34 Pac. 444.
(c) Did such purchase secretly allow a subscriber to with-
draw his subscription?
It must be remembered that appellants did not become sub-
scribers for any stock of the respondent company, and therefore
there could have been nothing due to the company from them
as subscribers. By the transaction they became the bona fide
owners of the stock as full paid, and could never be called on,
at least by the company, to pay any further sum on the stock.
Therefore the numerous cases relied on by the counsel for the
respondent of secret contracts between a corporation and a sub-
scriber for stock, by which the subscriber's liability for further
payment on their subscription is released, while excellent law,
have absolutely no bearing upon this case. The supreme court
of Illinois well says with reference to these cases : "So the
question is not whether appellant may release the village from
paying for and receiving the shares subscribed for. but whether
appellant has power to purchase shares of its own stock, paid
for, issued to and held by the village" : Chicago etc. Ey. Co. v.
^Marseilles, 84 111. 643. In the following cases, among others,
contracts similar to the one in question were held not to be
ultra vires, and were enforced against the corporations : Browne
V. St. Paul Plow Works, 62 Minn. 90, 64 X. W. 66 ; Vent v.
Duluth C. & S. Co., 64 ]\Iinn. 307, 67 N. W. 70 ; Freeir.ont Car-
riage Co. V. Thomsen, 65 Neb. 370, 91 N. W. 376; Chicago P.
P. Co. V. ]\Iarseilles, 84 111. 145; Howe Grain etc. Co. v. Jones^
21 Tex. Civ. App. 198, 51 S. W. 24; New England ^^ Tr. Co.
V. Abbott, 162 Mass. 148, 38 N. E. 432, 27 L. P. A. 271; West
v. Averill Co., 109 Iowa, 488, 80 N. W. 555.
We are satisfied from the foregoing authorities that tlie con-
tract was a valid and enforceable one, and that the court erred
57G Ameihcan State liEroRTs, Vol. 101. [Montana,
in holding that it was ultra vires. Speaking generally, there
is nothing inherently wrong about such contracts, and tliey hav-i
been frequently enforced as between individuals: Schultz v.
O'Eourke, 18 Mont. 418, 45 Pac. 634; Maurer v. King, 127
(^il. 114, 59 Pac. 290.
2. But the complaint is fatally defective in another substan-
tial regard. Section 1950 of the Civil Code provides: ''An
obligation is conditional, when tlie rights or duties of any party
thereto depend upon tlie occurrence of an uncertain event."
Section 1953 provides: "Conditions concurrent are those which
are mutually dependent, and are to be performed at the same
time." Section 1955 provides: "Before any party to an obliga-
tion can require another party to perform any act under it,
he must fulfill all conditions precedent thereto imposed upon
himself; and must be able and offer to fulfill all conditions con-
current so imposed upon him on the like fulfillment by the
other party, except as provided by the next section." The con-
tract sued upon comes clearly within tlie provisions of tlicsc
sections. The duty of redelivery of the stock to the respondent,
and the payment for the same by the respondent, became con-
current, mutually dependent, and to be performed simultane-
ously: Schultz V. O'Rourke, 18 Mont. 418, 45 Pac. G34. This
Ijeing true, appellants, before tliey can require the performance
of the duty devolving upon respondent to repurchase the stock,
"'must be able and offer to fulfill all conditions concurrent so
imposed upon him on the like fulfillment by the other party":
Civ Code, sec. 1955. The complaint is wanting in any sufh-
eient allegation of this character. The latter part of para-
graphs 2 and 3 of the complaint, above quoted, contain the only
allegations which could tend in any way to this end. The lat-
ter part of paragraph 2 alleges an offer made on or about Sep-
tember 13, 1900, to return the stock "in accordance with the
::oi te|.yi,s of said agreement." The contract was entered into
on ^lay 23, 1900. 'J'he option of resale by the appellants was
to be exercised "at the expiration of six months from this date."
Pespondent, therefore, under the contract, was not bound to re-
purchase the stock until the expiration of six months from May
23, 1900, and an offer to deliver the stock to the corporation
before the expiration of that time was premature, and of no
Avail: Schultz v. 0"Pourke, 18 Mont. 418, 45 Pac. G34. The
onlv other allegations in the complaint upon this matter are
those found in paragraph 3. They are utterly insufficient.
They do not show that the appellants were able or offered to
Jan. 1904.] Porter v. Plymouth Gold Mining Co. 577
return the stock but only that "they are ready and willing" to
do so. Being ready and willing to perform an act cannot be
tortured by construction into an allegation of an offer to per-
form such act. One might be ready and willing to do an act
without knowledge thereof on the part of the other party. The
other party could only legally acquire such knowledge by an
offer of performance, made to him. It is thus apparent that
the complaint is deficient for want of proper allegations in thi's
regard.
This specific defect in the complaint was not raised or argued
in this court. Counsel for respondent insists only that the com-
plaint is deficient, because it does not allege that the stock was
offered to be returned properly indorsed, so as to pass title to
the company upon its surrender, and not that there was no
offer to deliver the stock. This position must have been taken
by counsel under the erroneous assumption that the allegations
of offer to return the stock on September 13th were sufficient.
We have seen that they did not have that effect. This court
has established the rule that, where a demurrer has been filed
to a complaint on the ground that it does not state facts suffi-
cient to constitute a cause of action, and the court below sus-
tains such demurrer, and plaintiff elects to stand on his com-
plaint, and judgment is entered against him, upon an appeal
from the judgment it will be affirmed if this court, upon an in-
spection of the complaint, concludes that the demurrer should
^^' have been sustained upon some other ground, although such
ground was not suggested or argued to this court by counsel,
and although the court below may have sustained the demurrer
for a wrong reason. The court says: "This case is before this
court on appeal from the judgment, which judgment was on
demurrer sustained to the amended complaint for want of sub-
stance, plaintiff abiding its complaint. The court was right
in its decision on the demurrer. The judgment is right, and
must be sustained. The court may have, in sustaining the de-
murrer, done so for a wrong reason, but we have nothing to do
with its reasons. Our duty is to pass upon the correctness of
its action. If the act of the court in sustaining the demurrer
was right, the court must be sustained : Hayne on Xew Trial
and Appeal, p. 839. The silence of counsel as to the defects
found by this court in the said complaint cannot in such a case
as this be regarded as a restriction upon tlie legal scope of the
general objection raised by the demurrer"': Butte Hardware
Co. v. Frank, 25 Mont. 3! l". (15 Pac. 1.
Am. St. Rep. Vol. 101—37
578 American State Reports^ Vol. 101. [Montana^
Counsel for appellants may say that the bill of exceptions in
the record disclotes the fact that the court below, in deciding
the demurrer, only passed upon the question that the complaint
did not state facts sullicient to constitute a cause of action, be-
cause the contract sued upon was ultra vires. There is noth-
ing, however, in the bill of exceptions, wliich in any manner dis-
closes that the point last above referred to in this opinion was
not argued to or considered by the court. It may have been.
The presumption that it was is just as consistent with the re-
cital in the bill of exceptions as that it was not. We cannot,
therefore, permit this recital in the bill of exceptions to prevail
over the law as laid down by this court in its decisions.
3. The question as to the action of the court in dissolving
the attachment which was issued at the time the suit was com-
menced becomes immaterial under the conclusions that we have
reached upon the appeal from the judgment. If the comi)laint
did not state facts sufficient to constitute a cause of action, no
attachment could be maintained.
3^3 Upon the decision of this court above cited we advise that
the motion to dismiss the appeal be overruled, and that the judg-
ment and order appealed from be affirmed.
Per CURIAM. For the reasons stated in the foregoing
opinion, the motion to dismiss is denied, and the judgment and
order affirmed.
HOLLOWAY, J. I agree with the conclusion reached in
paragraph 2 of the opinion. The only question before the court
for determination is. Does the complaint state a cause of action ?
That question is answered in the negative in paragraph 2 above,
and the judgment of the trial court is affirmed. In my judg-
ment, the decision reached in paragraph 1 of the opinion is
simply a dictum, and should not be announced as a determina-
tion of this court.
A Corporation may, unflcr ordinary circumstances, purchase its own
stock: See the monographic note to Commercial Nat. Bank v. Burch,
33 Am. St. Rep. o39-347. Compare Adams etc. Co. v. Deyotte, 8 S.
Dak. 119, 59 Am. St. Rep. 751, 65 N. W. 471, 31 L. R. A. 497. It can-
not do so, however, to the prejudice of its creditors: Hall v. Hen-
derson, 12G Ala. 449, 85 Am. St. Rep. 5o, 28 South. 531. And it is held
that a corporation cannot reduce its authorized capital by purchasinjT
its own shares for cancellation: Cartwright v. Dickinson, 88 Tenn.
476, 17 Am. St. Rep, 910, 12 S. W. 1030, 7 L. R. A. 706.
Teb. 1904.] State v. Keeel. 579
STATE V. KEEEL.
[29 Mont. 508, 75 Pac. 362.]
MURDHE. — Information for Murder need not expressly allege
an intent to kill. (p. 580.)
MUEDEE. — Information for murder must directly allege that
death resulted from the mortal wound or wounds inflicted by the
defendant, (p. 581.)
MUEDEE. — Information for murder which is defective in in-
suflSciently alleging the cause of death is not cured by a concluding
allegation that "so the said defendant did kill and murder the said
deceased." (pp. 581, 582.)
MUEDEE — Insane Delusions. — Instructions that insane delu-
sions, to excuse murder, must be such that if things were as the
person possessed of such delusions imagined them to be they would
justify the act springing from such delusions, and that one suffering
from a partial delusion was in the same situation as to responsibility
as if the facts with respect to which the delusion existed were real,
are radically wrong, and fatally erroneoua. (p. 584.)
CEIMINAL LAW— Insanity as Defense. — If a person is charged
with the commission of a crime, and if at the time of its commis-
sion, by reason of disease affecting his mind, his mental faculties were
so impaired or perverted, as that he was unable to distinguish between
right and wrong as to the particular act with which he is charged,
or if he was able to recognize that it was wrong, and yet was impelled
by some impulse, originating in disease, to the commission of the
act, and was unalsle by reason of the diseased condition of his mind,
enfeebling his will, or otherwise, to refrain from its commission, he
is not guilty by reason of his insanity, (p. 586.)
TEIAL. — Instructions Which are Conflicting upon a material
issue are ground for the reversal of the judgment, (p. 586.)
MUEDEE. — Instructions in a murder case, that certain evi-
dence is corroborative of other evidence, is a comment on the weight
of the evidence, and therefore reversible error, (p. 587.)
INSANITY AS DEFENSE.— Instructions stating that lunatics
and insane persons are incapable of committing crimes, and that if
the defendant was an insane person he should be acquitted, are er-
roneous if not qualified by adding a definition of the term "in-
sanitv, " because some forms of insanity are no defense to crime,
(p. 588.)
INSANITY as Defense to Crime is a question of fact for the
jury to determine under proper instructions, (p. 588.)
INSANITY as Defense to Crime. — An insane person in crim-
inal law, incapable of committing a crime, is one who is so mentally
unsound as to be unable to form a criminal intent to commit the
particular crime charged, (p. 590.)
T. J. Walsh and C. B. Xolan, for the appellant.
J. Donovan, attorney general, for the state.
510 CALLAWAY, C. The defendant has appealed from a
judgment finding him gnilty of mnrder in the second degree.
580 American State Reports, Vol. 101. [Montana,
and from an order denying his motion for a new trial. A num-
ber of errors are assigned.
1. He first attacks the information, which, omitting the
formal parts, is as follows: "That at the county of Lewis and
Clarke, in the state of Montana, on or about the eleventh day of
April, A. D. 1902, and before the filing of this information, the
said James S. Keerl, did, willfully, unlawfully, feloniously and
of his deliberately premeditated malice aforethought, make an
assault upon one Thomas Crystal, a human being, and a certain
pistol, commonly called a revolver, which was then and there
loaded with gimpowder and leaden bullets, and by him. the paid
James S. Keerl, had and hold in his right hand, he tbe said
James S. Keerl, did then and there willfully, unlawfully, fe-
loniously and of his deliberately premeditated malice afore-
thought, shoot off and discharge at, upon and into the body of
said Tbomas Crystal, thereby and by thus striking the said
Thomas Crystal with the said leaden bullets, inflicted upon
the said Thomas Crystal certain m.ortal wounds in the back,
side and head of the said Thomas Crystal (a more particular
description of which said mortal wounds is to the county attor-
ney unknown), of which said mortal wounds the said Tliomas
Crystal did then and there languish, and languishing did live,
and thereafter, on the twenty-first day of April, A. D. 1902, at
the county of Lewis and Clarke, in the state of ]\Iontana, the said
Thomas Crystal died." The objections lodged against the in-
formation are: 1. It does not contain an express averment of
intent to kill; 2. It fails to allege that death resulted from tlie
wounds inflicted.
The first objection must be overruled on tlie authoritv of
State V. Mctcalf, 17 Mont. 417, 43 Pac. 182, State v. Northrup,
13 Mont. 522, 35 Pac. 228, and Territory v. Godas. 8 Mont.
^11 347, 21 Pac. 26. While the plcading'in this respect mu4
be held sufficient under the cases cited, this court has hitliorto
suggested tliat, as following a better practice, prosecuting offi-
cers should aver intent specially: Territorv v. Godas, 8 Mont.
347, 21 Pac. 26.
Tlio second point urged presents more difficulty. After al-
leging the infliction of certain mortal wounds, the information
continues, "of which said mortal wounds the said Thomas Crys-
tal did tlien and there lan.i^uish and languishing did live, and
thereafter, on the twenty- first dav of April. A. D. 1902, at the
county of Lewis and Clarke, in the state of Montana, the said
Thomas Crvstal died."
Feb. 1904.] State v. Keekl. 581
An information must be direct and certain as regards the
party charged, the offense charged, and the paraticular circum-
stances of the offense charged, when they are necessary to con-
stitute a complete offense: Pen. Code, sec. 1834. It is not per-
missible to convict the defendant upon mere inferences; he
must be directly, plainly and specifically charged with the com-
mission of a certain crime, and it must be proved substantially
as alleged in order to convict him. In order to convict an ac-
cused of murder, the fact of the killing by him as alleged must
be proved beyond a reasonable doubt: Pen. Code, sec. 358.
The fact that the defendant inflicted upon another human being
a mortal wound deliberately, premeditatedly, with malice afore-
thought, and with the intent to kill the victim, is not sufficient
to substantiate a charge of murder. The victim must die of the
mortal wound, and within a year and a day after the stroke is
received or the cause of death administered: Pen. Code, sec.
357. If the victim die of the mortal wound, but after a year
and a day have elapsed since its infliction, the defendant may
not be convicted of either murder or manslaughter. Neither
can he be so convicted if, while the victim is languishing be-
cause of a mortal wound, death ensues from some cause not
connected with or a consequence of the wound. For these rea-
sons the information should directly allege that death resulted
from the mortal wounds inflicted by the defendant. This view
being so clearly correct in principle, it would seem that no cita-
tion *'^^ of authorities is necessary, but see Clark on Criminal
Procedure, 178; People v. Lloyd, 9 Cal. 55; Commonwealth v.
Macloon, 101 Mass. 1, 100 Am. Dec. 89; State v. Sundheimer,
93 Mo. 311, 6 S. W. 52; Maxwell's Criminal Procedure, 180;
Bishop's New Criminal Procedure, sees. 527, 531, 532; Whar-
ton's Criminal Law, 10th ed., sec. 536.
In Lutz V. Commonwealth, 29 Pa. St. 441, while an indict-
ment containing language similar to the one at bar was sus-
tained, the court say: "This indictment is not artistically ex-
pressed. Its grammatical construction is open to criticism,
and it trenches hard on those rules of certainty which obtain in
criminal pleading."
''The attorney general relies on the concluding clause of the
information as supplying the defect, because it alleges, 'and so
the said James S. Keerl did in the manner and form aforesaid
willfully, unlawfully, feloniously and of his deliberately pre-
meditated malice aforethought kill and murder the said Thomas
Crystal.' These words are the mere conclusion drawn from the
682 American State Reports^ Vol. 101. [Montana,
preceding averments. If the averments are bad, the conclusion
will not aid them; if they are good, and sufficiently describe the
crime as the law requires .... the formal concluding words
are immaterial" : Territory v. Young, o Mont. 244, 5 Pac. 248 ;
State V. Northrup, 13 Mont. 522, 35 Pac. 228.
We cannot give our approval to this information. As this
case must go back for a new trial, the information may be
amended by leave of the court to conform to the views herein
expressed.
2. The defense interposed was that the defendant, when he
committed the homicide, was affected with insanity. The de-
fendant excepts to instructions ISTos. 48, 50, 51, 52, 56 and 5T,
and alleges that 48, 51 and 52 are in conflict with 34, 38, 49,
53. 54 and 55, A discussion of a portion of those excepted to
will be sufficient to dispose of the points raised. We quote 52,
56 and 57.
"52. The standard of accountability is this : Had the de-
fendant, at the time of the commission of the act, sufficient men-
tal ^^^ capacity to appreciate the character and quality of the
act? Did he know and understand that it was a violation, of
the rights of another, and in itself wrong? Did he know that
it was prohibited by the laws of this state, and that its commis-
sion would entail punishment and penalties upon himself? If
he had the capacity thus to a])preciate the character and compre-
hend the possible or probable consequences of his act, he is re-
sponsible to the law for the act thus committed, and is to be
judged accordingly."
"56. The court further instructs you that, if you find that
the accused was possessed of a delusion or delusions, you are
carefully to bear in mind that it is not every delusion that can
be considered an insane delusion. The delusion must be of such
a character that, if things were as the person possessed of such
delusion imagined them to be, they would justify the act spring-
ing from the delusion.
"57. The court further instructs you that if you find the
accused was possessed of a partial delusion only, and was not
in other respects insane, then he must be considered in the same
situation, as to responsil)ility, as if the facts with respect to
which the delusion exists were real. Por example, if, under
the influence of his delusion, he supposed another man to l)e
in the act oi attempting to take away his life, and he killed that
man. as he supposed, in self-defense, he would be exempt from
punishment; but if his delusion was that the deceased had done
Eeb. 1904.] State v. Keerl. 583
ii serious injury to his character or person, and he killed him
in revenge for such supposed injury, he would be liable to pun-
ishment."
These instructions bring us to a realm in which the investi-
gator feels himself lost in a labyrinth of conflicting decisions.
Of course, any discussion of the principles applicable to in-
-sanity as a defense to a crime must necessarily be limited to the
particular case in hand. As to what extent juries should be
instructed upon this subject and the subject matter of such in-
structions is of the greatest importance. Some general rules
have always been, and must be, taid down by the courts for the
^^^ guidance of juries in trials of this character. This view is
universally adopted; the only question is, What rule or rules
should be adopted, and should the courts lay down any test?
The tests of insanity generally adopted by the courts are the rigl^t
and wrong test, the irresistible impulse test, the right and wrong
test as regards the particular act, and the right and wrong
test as modified by the irresistible impulse test. The supreme
court of New Hampshire denies the existence of any test : State
V. Pike, 49 N. H. 399, 6 Am. Eep. 533 ; State v. Jones, 50 N".
H. 369, 9 Am. Eep. 242.
A majority of the courts seem to follow the right and wrong
test laid down in McXaghten's case: 10 Clark & F. 200, 1
Car. & K. 47. Eng. C. L. Eep. 129, 8 Eng. Eep., Full Print,
718. For this reason, and because instructions 52, 56 and 57
are based upon the doctrines enunciated in that celebrated case,
we are justified in discussing it at some length. We shall
do so with special reference to instructions 56 and 57. In
1843 Daniel McXaghten was tried for the murder of Edward
Drummond. At his trial medical testimony was adduced
showing that McXaghten was of unsound mind at the time of
the killing; that he suffered from morbid delusions; that a
person so laboring under a morbid delusion might have a moral
perception of right and wrong, but that in case of the pris-
oner it was a delusion which carried him away beyond the
power of his own control, and loft him no such perception;
and that he was not capable of exercising any control over acts
which had connection with his delusion. The prisoner was
acquitted, but public feeling ran so high in consequence that
the house of lords asked the opinion of tbe judges on tbe law
governing such cases. Three of the five questions propounded
were: "2. What are the proper questions to be submitted to the
jury when a person alleged to be afflicted with insane delusion
684 American State Eepoets, Vol. 101. [Montana,
respecting one or more particular subjects or persons is charged
with the commission of a crime (murder, for example), and
insanity is set up as a defense? 3. In what terms ought the
question to be left to the jury as to the prisoner's ^^^ state of
mind at the time when the act was committed? 4. If a person
under an insane delusion as to existing facts commits an offense
in consequence thereof, is he thereby excused?" To the sec-
ond and third questions the judges answered "that to establish a
defense on the ground of insanity it must be clearly proved
that, at the time of the committing of the act, the party
accused was laboring under "such a defect of reason, from
disease of the mind, as not to know the nature and quality of
the act he was doing; or, if he did know it, that he did not
know he was doing what was wrong." To the fourth question
they answered: "Making the same assumption as we did be-
fore, namely, that he labors under a partial delusion only, and
is not in other respects insane, we think he must be considered
in the same situation as to responsibility as if the facts, with
respect to which the delusion exists, were real. For example,
if, under the influence of his delusion, he supposes another man
to be in the act of attempting to take away his life, and he kills
that man, as he supposes, in self-defense, he would be exempt
from punishment. If this delusion was, that the deceased had
inflicted a serious injury to his character and fortune, and he
killed him in revenge for such supposed injury, he would be
liable to punishment."
Dr. Clevenger, in discussing this case, says: "Great ignor-
ance of the nature of insanity is displayed in these answers^
which seem to have been constructed with special reference to
the popular wishes in the particular instance of McNaghten's
offense"; and then follows with an illustrative criticism in
which he demonstrates the absurdity of the abstract right and
wrong test, as well as tlie dangerous and inhuman doctrine
enunciated in that part of McNaghten's case which refers to
insane delusions: Clevenger's Medical Jurisprudence of In-
sanity. 19 et seq.
One of the most learned discussions on this subject is by Mr.
Justice Somcrville, in Parsons v. State, 81 Ala. 577, GO Atu.
Rep. 193, 2 South. 854. From that opinion we quote with ap-
proval the following language: "If the rule declared ^'^^ by
the English judges be correct, it necessarily follows that the
only possible instance of excusable homicide in cases of delu-
sional insanity would be where the delusion, if real, would have
Feb. 1904.] ' State v. Keeel. 585
been such as to create in the mind of a reasonable man a just
apprehension of imminent peril to life or limb. The personal
fear or timid cowardice of the insane man, although created by
disease acting through a prostrated nervous organization, would
not excuse undue precipitation of action on his part. Nothing
would justify [excuse?] assailing his supposed adversary ex-
cept an overt act or demonstration on the part of the latter^
such as, if the imaginary facts were real, would imder like cir-
cumstances have justified [excused?] a man perfectly sane in
shooting or killing. If he dare fail to reason, on the supposed
facts embodied in the delusion, as perfectly as a sane man could
do on a like state of realities, he receives no mercy at the hands
of the law. It exacts of him the last pound of flesh. It would
follow, also, under this rule, that the partially insane man, af-
flicted with delusions, would no more be excusable than a sane
man would be, if, perchance, it was by his fault the difficulty
was provoked, whether by word or deed; or if, in fine, he may
have been so negligent as not to have declined combat when he
could do so safely, without increasing his peril of life or limb.
If this has been the law heretofore, it is time it should be so
no longer. It is not only opposed to the known facts of modern
m.edicai science, but it is a hard and unjust rule to be applied
to the unfortunate and providential victims of disease. It
seems to be little less than inhuman, and its strict enforcement
would probably transfer a large percentage of the inmates of
our insane hospital from that institution to hard labor in the
mines or the penitentiary. Its fallacy consists in the assump-
tion that no other phase of delusion, proceeding from a diseased
brain, can so destroy the volition of an insane person as to ren-
der him powerless to do what he knows to be right, or to avoid
doing what he may know to be wrong."
We therefore think that instructions 56 and 57 are radically
wrong, and should never be given.
^^'' 3. Now, taking up 52. Defendant's counsel especially
object to this instruction, because it does not recognize that tbe
defendant may have acted under an irresistible impulse caused
by mental disease.
It seems to be demonstrated by modern investigation, beyond
cavil, that many insane persons, while having the mental ca-
pacity to distinguish between right and wrong, are not able
to choose between doing what is right and doing what is wrong.
The lower court recognized this in instructions 34, 38, 49, 53,
54 and 55. As illustrative of this, we quote a portion of 38:
586 American State REroRTS, Vol. 101. [Montana,
'•If, by reason of disease affecting his mind, his mental faculties
were so impaired or perverted as that he was unable to distin-
guish between right and wrong as to the particular act with
which he is charged; or if he was able to recognize that it was
wrong, and yet was impelled by some impulse, originating in
disease, to the commission of the act, and was imable by reason
of the diseased condition of his mind, enfeebling his will or
otherwise, to refrain from its commission — he should be ac-
quitted by reason of insanity." This proposition was also
recognized in State v. Peel, 23 Mont. 358, 75 Am. St. Rep. 529,
59 Pac. 169, in which the court, speaking through Mr, Chief
Justice Brantly, says: "One may have mental capacity and
intelligence sufficient to distinguish between right and wrong
with reference to the particular act, and to understand the con-
sequences of its commission, and yet be so far deprived of voli-
tion and self-control, by the overwhelming violence of mental
disease, that he is not capable of voluntary action, and there-
fore not able to choose the right and avoid the wrong."
Instruction 52 is based upon what is called the right and
wrong test, which does not recognize that the accused may have
been involuntarily impelled to the commission of an act from
which he was mentally unable to refrain, and tlicrefore is in
conflict with instructions 34, 38, 49, 53, 54 and 55, which arc
based upon the right and wrong tost as modified by the irresisti-
lile impulse test. In tlie Peel case the court suggested that,
in a case in wbicli tliere is no pretense that the party cannot
^'^^ control his own actions, it may be proper to apply the right
and wrong test. We thus see that the lower court gave to the
jury two different tests by which the defendant's responsibility
for crime might be determined as the test to be followed by
them. These tests are based upon different theories, and con-
sequently upon ditl'erent states of fact, and the two are irroeon-
cilablo. If instructions 34, 38, 49, 53, 54, and 55 were applica-
ble to the facts in the case, 48, 51 and 62 could not be; the
three latter excluded from the jury any consideration of the
question whether, under the evidence, the defendant acted un-
der an insane irresistible impulse. When instructions are con-
flicting upon a material issue, the judgment cannot stand:
State V. Rolla, 21 Mont. 582. 55 Pac. 523; State v. Sloan, 22
IMont. 293, 5(i Pac. 364; State v. Peel, 23 Mont. 358, 75 Am.
St. Rep. 529, 59 Pac. 169 : State v. McClellan, 23 Mont. 532,
75 Am. St. Rep. 558, 59 Pac. 924.
Feb. lOO-L] State v. Keeel. 587
4. Defendant also attacks instruction ISTo. 50, on the ground
that it comments upon the weight which is to be given to cer-
tain items of the testimony. So much of tlie instruction as is
criticised reads : " 'That subtle essence which we call "mind"
defies, of course, ocular inspection. It can only be known by
its outward manifestations, and they are found in the language
and conduct of the man. By these his thoughts and emotions
are read, and according as they conform to the practice of peo-
I)le of sound mind, who form the large majority of mankind,
or contrast harshly with it, we form our judgment as to his
soundness of mind. For this reason evidence is admissible to
show conduct and language, at different times and on different
occasions, which indicate to the general mind some morbid con-
dition of the intellectual powers; and the more extended the
view of the person's life, the safer is the judgment fonned of
him. Everything relating to his physical and mental history
is relevant, because any conclusions as to his sanity must often
rest upon a large number of facts. As a part of the language
and conduct, letters spontaneously written afford one of the
best indications of mental condition. Evidence as to insanity
^^^ in the parents and immediate relatives is also pertinent.
It is never allowed to infer insanity in the accused from the
mere fact of its existence in the ancestors. But when testimony
is given directly tending to prove insane conduct on the part of
the accused, this kind of proof is admissible as corroborative
of the other. And therefore, it is that the defense has been al-
lowed to introduce evidence to you covering the whole life of
the accused and reaching to his family antecedents^ "
This instruction was taken from the charge of Judge Cox
to the jury in the Guiteau Case, 10 Eed. IGl. In the United
States courts the judges are pcrmit'ted to comment upon and
explain the testimony of the witnesses, but such is not the rule
in this jurisdiction. The instruction is certainly open to de-
fendant's criticism. For instance, the jury is first told that ''it
is never allowed to infer insanity from the mere fact of its
existence in the ancestors," and is tlien instructed, "but. wlien
testimony is given directly tending to prove insane conduct on
the part of the accused, this kind of proof is admissible as cor-
roborative of the other." When the court told the jury tliat
certain evidence was corroborative, it commented on the weight
of that testimony. In this the court erred. It is the sole prov-
ince of the jun^ to weigh each item of the testimonv, and to afive
it such credit as they believe it entitled to: State v. Sullivan,
588 American State Repoets, Vol. 101. [Montana,
9 Mont. 174, 22 Pac. 1088; State v. Gleim, 17 Mont. 17, 53
Am. St. Eep. 655, 41 Pac. 998, 31 L. E. A. 294; State v. Ma-
son, 24 Mont. 340, 61 Pac. 861.
5. "Wliile we have not passed upon the correctness of any
instructions in this case which have not been argued by counsel,
we call the court's attention to 32, 33 and 36. No. 32 reads:
"Under the law of this state certain persons^, including lunatics^
and insane persons, are incapable of committing crimes. Ac-
cordingly, if you find that, at the time of the doing of the acts-
cliarged in the information against the defendant, he was an
insane person, it is your duty to acquit him on the ground of
insanity." After the words "an insane person" the court should
have explained the meaning of the term "insanity," as it is
520 regarded in the criminal law, either by direct definition or
by reference to other parts of the charge. It is not sufficient fo
give the statute without explanation, because it is not every
form of insanity which will excuse the defendant of the act
committed.
6. The disease of insanity is subject to so many different
pliascis, which are manifested in so many different ways — as
various as human thought — that each case must stand upon its
own facts. A court, therefore, cannot instruct the jury on every
pliase or manifestation of insanity, nor should it attempt to;
the instructions should be as brief and simple as it is possible
to make them. It should only declare generally upon the sub-
jec-t, and it must be left to the jury to find from the proof upon
the issue of insanity.
The question whether the defendant in any case was af-
fected with insanity to such a degree as will excuse him from
the commission of an act which would be criminal if done by a
sane person is one of fact; it certainly is not a question of
law. When a defendant sets up insanity as a defense, laymen,
and experts on insanity, are permitted to testify upon the ques-
tion of his sanity, under the rules of evidence. Upon the testi-
mony adduced the jury is to find the defendant piiilty, or not
guilty, by reason of insanity. What persons, then, are insane
within the purview of the criminal law? Manifestly, those who
are mentally imable to form a criminal intent. The Penal Code
declares :
"Sec. 20. In every crime or public offense there must exist
a union or joint operation of act and intent, or criminal negli-
gence.
Peb. 1904.] State v. Keerl. 589
"Sec. 21. The intent or intention is manifested by the cir-
cumstances connected with the offense, and the sound mind and
discretion of the accused. All persons are of sound mind who
are neither idiots nor lunatics, nor affected with insanity."
For the purposes of this discussion, we shall treat insanity
and lunacy as synonymous terms. What, then, is insanity in
a legal sense? Mr. Bishop gives the following definition: "In-
sanity, ^^^ in the criminal law, is any defect, weakness, or
disease of the mind rendering it incapable of entertaining, or
preventing its entertaining, in the particular instance, the crimi-
nal intent which constitutes one of the elements of every crime" :
1 Bishop's Criminal Law, sec. 381, suhd. 2. "Criminal responsi-
bility is to be determined solely by the capacity of the defendant
to conceive and entertain the intent to commit the particular
crime. If there is no intent, there is no crime" : State v. Peel,
23 Mont. 358, 75 Am. St. Eep. 529, 59 Pac. 169. In the Peel
case the court did not attempt to lay down any test ; it was mere-
ly discussing the case presented to it. It gave its approval to
instructions 36 and 37 quoted in the opinion, saying that upon
that branch of the case the lower court instructed the jury
fully and fairly. It will be observed that instruction 37 dealt
wholly with the question of the defendant's intent. That the
instructions last mentioned were correct in the Peel case is un-
doubted.
It is worthy of remark tliat juries must be composed of men
of a very high order of intelligence if they are much enlightened
— indeed, if they are not l)a(1ly confused — by the mass of in-
structions usually given them by the courts in insanity cases.
Instructions are given to enlighten a jury, not to confuse it:
Yoder v. Eeynolds, 28 :\[ont. 183, 72 Pac. 417.
Eecognizing the general doctrines asserted in the Peel case
as correct, we are of the opinion that the result sought to be
obtained, to wit, a solution of the question wliether tlio defend-
ant, when he committed the act for which he is on trial, had the
mental power to entertain a criminal intent, and did entertain
it, can be reached best by submitting to the jury a test founded
solely upon the statute. The question for determination being.
Was the defendant, when he committed the act, sane, or affected
with insanity? the court should give to tlie jury the appropriate
sections of the statute, at the same time defining insanity in
accordance with Bishop's definition, as supplemented by this
court's comment thereon in the Peel case, or make use of equiv-
alent language. Wc doubt if any other or further instructions
590 American State Keports, Vol. 101. [Montana^
on the subject of insanity are necessary or useful: State v.
5-2 Pike, 49 X. H. 399, 6 Am. Eep. 533; State v. Jones, 50
N. II. 369, 9 Am. Rep. 242. The jury may determine the
fact from the testimony adduced before it, no matter what
may be the character of the insanity attributed to the defendant.
This includes, of course, insane delusions and insane irresistible
impulses. To illustrate : If the defendant, when he committed
the act which would be criminal if done by a sane person, did
not know the difference between right and wrong, or, knowing
it, was mentally unable to refrain from doing the wrong, he
was incapable of forming the criminal intent: or if he was so
mentally diseased that he was under the overmastering influence
of a delusion which obliterated his power to refrain from the
commission of the wrongful act, he was incapable of forming
the criminal intent.
In a case where insanity is urged as a defense, the particular
technical phase of insanity from which the defendant suffered
when he committed the act (if he was in fact insane) is utterly
immaterial to the jury; they do not know nor care what the
alienists may call it; their desire should be, and their duty is,
to ascertain whether the defendant committed the act with a
criminal intent ; if he did, he is guilty ; if he did not, he is not
guilty by reason of insanity.
For the foregoing reasons we are of the opinion that the judg-
ment and order should be reversed, and the cause remanded for
a new trial in conformity with the views herein expressed.
Per CURIAM. For the reasons given in the foregoing opin-
ion, the judgment and order are reversed, and the cause is re-
manded for a new trial.
ITOLLOWAY, J. I am unable to agree with much that is
said in the foregoing opinion. In my judgment, conflicting
doctrines on the subject of insanity are announced in State
v. Peel, 23 Mont. 358, 75 Am. St. Rep. 529, 59 Pac. 3 69, and,
if it is intended in this instance to approve what is said in
iluit decision upon tliis sul)ject, great difficulty must necessarily
be experienced upon a retrial of tliis cause.
In niv opinion, instructions 50 and 57 are erroneous.
^''^^ ln>truetion Xo. 50 does not state correct principles of
law. and the court tlieroin comments on the weight of the evi-
dence. For these reasons. I think it should not be given at all.
I am also unable to roconcile tbo doctrine announced in State
V. Pike, 49 X. II. 399, G Am. Rep. 533, and State v. Jones, 50
Feb. 1904.] State v. Keeel. 591
N. H. 369, 9 Am. Eep. 242, whicli 1 think correct, and which
seems to he approved, with what is said in other portions of the
opinion of the majority of the court.
However, without attempting any discussion of the subject,
T content myself with concurring in the order reversing the
judgment, but do so upon the grounds that conflicting instruc-
tions upon a material issue were given, and that the court gave
instructions 50, 56 and 57, above.
Insanity as a defense to crime is discussed in the monographic notes
to Knights v. State, 76 Am. St. Eep. 83-97; State v. Marler, .^G Am.
Dec. 402-410. And insane delusions as affecting criminal respon-
sibility are discussed in the monographic note to People v. Hubert,
63 Am. St. Rep. 100-108.
CASES
IN THE
SUPREME COUET
NEBRASKA.
LEIGH V. GREEN".
[64 Neb. 533. 90 N. W. 255.]
AFFIDAVIT. — Where Statements in an Affidavit are ma rip posi-
tively and directly, an additional statement that affiant believes
them to be true does not detract therefrom, (p. 594.)
AFFIDAVIT — Information and Belief. — Where a showing by
affidavit ia required as to facts which are necessarily matters of in-
formation and belief, an affidavit on information and belief is suffi-
cient, (p. 595.)
TAX LIEN — Foreclosure. — A Description of the Land in a pub-
lished notice in proceedintrs to foreclose a tax lien is sufficient where
the context shows that property in the state is referred to, and there
is but one tract in the state answoring the iloscription, although it is
equally applicable to another tract in another state, (p. 597.)
TAXATION — Foreclosure of Tax Lien. — The Word "Owner,"
as used in the Nebraska statute providing for tlio foreclosure of tax
liens where the owner is not known, refers to persons having estates
in the land, and not to encumbrancers and lienholders. (p. 5',)S.)
TAXATION.— The Owner of the Land is Unknown, within the
meaning of the Nebraska statute providing for tlie forecdosure of
tax liens, wlienevcr tlie holder of a tax certificate is unable, with
rcasonaV)Ie diligence and inquiry in the neighborhood of the lan<l,
to ascertain the wliereabouts of the persons a])poaring to have legal
estates tlierein, or to ascertain who have such estates, (p. 5'J9.)
TAXATION — Affidavit. — In Proceedings to Foreclose a tax
lien undiT a statute providing therefor when tlie owner of tlie land
is not known, allegations in the ])etition and an aflidavit for service
by publication, on information anil ])(dief, to the effect that the owner
is unknown, arc sufTicient as against collateral attack, (p. 599.)
TAXATION— Foreclosure — Parties. — In a profcc/ling to fore-
close a tax Hen under a statute providing therefor when the owin'r is
unknown, the propriety of joining as a party defendant one havintr
an interest in the land short of ownership will not be reviewed col-
laterallv. (p. 599.)
cm)
April, 1902.] Leigh v. Gkeen. 593
TAXATION— New Title. — A sale of land in proceedings to
foreclose a tax lien under a statute providing therefor when the
owner is unknown, creates a new and independent title and bars all
pre-existing interests or liens, (p. 600.)
TAXATION — Proceeding in Rem — Due Process of Law. — A
statute awarding to the purchaser at a tax sale a remedy by suit
against the land itself, available whenever the owner is not known,
whereby all persons claiming interests in the land may be barred
completely on sale under foreclosure, does not deny due process of
law. (p. 601.)
For a statement of the facts and the statute involved in this
case, see the note which follows it, post, page 603.
W. E. Green, James McCabe, Eeed & Cross and Smyth &
Smith, for the appellant.
C. C. McXish, Anderson & Keefe, Woolworth & McHugh,
J. C. Crawford and A. E. Oleson, for the respondent.
°34 rOUXD, C. The issues of fact and law involved in
this appeal are sufficiently stated in the former opinion. Many
of the conclusions reached in that opinion are acquiesced in
by the parties, and have not been reargued. Four proposi-
tions, liowevcr, are insisted upon by counsel for appellee as
C35 leaving been overlooked or wrongly determined, and re-
quire consideration. These propositions are whether an af-
fidavit for service by publication, made upon information and
belief only, is sufficient; whether the description of the land
in the published notice was sufficient to give the court juris-
diction in the tax foreclosure proceedings in question; whether,
under a proper construction of sections 4 and 6, article 5, chap-
ter 77, of the Compiled Statutes, foreclosure of a tax lien by
suit against the land itself will bar lienholders not made parties
to the proceedings, and not served with process; and, finally,
whether, if such is the proper construction of said sections,
they are constitutional and valid, in view of the constitutional
provisions, both federal and state, against deprivation of prop-
erty without due process of law.
With respect to the first question, we may remark that it is
by no means clear that the affidavit in question is to be treated
as one upon information and belief. Examination of the manv
cases in which affidavits have been held insufficient because made
upon information and belief only, discloses tbat in such cases
the affiant stated tliat he believed so and so (Armstrong v.
Sanford, 7, Minn. 49 (Gil. 34); Thompson v. Higginbotliam,
18 Kan. 42) ; or that he had reason to believe and did believe
Am. St. Rep. Vol. 101—38
594 American State Keports^ Vol. 101. [iNebraska,
it (Clarke v. Bank, 57 Xeb. 314, 73 Am. St. Rep. 507, 77 X. W.
805; Ex parte Spears, 88 Cal. 650, 22 Am. St. Rep. 341, 26
Pac. 608; Ex parte Morgan (D. C), 20 Fed. 298); or that
he was informed and believed so and so (Ex parte Rowland,
35 Tex. Cr. Rep. 108, 31 S. W. 651) ; or that, "on his best
knowledge, information and belief," certain facts were tnie
(Ex parte Lane (D. C), 6 Fed. 34) ; or that certain state-
ments in a pleading were true except as to statements on in-
formation and belief and that such statements were believed
to be true: City of Atchison v. Bartholomew, 4 Kan. 124; At-
torne}^ General v. President etc. of Bank of Clienango, Hopk.
Ch. 596. In another class of cases, more nearly like the one
at bar, the affiant states that certain facts are true, as he be-
lieves, or as he is informed and believes: State v. Lancaster
County Commrs., 49 Nob. 51, 68 N. W. 336; ^^^ State v.
Mayor etc. of City of Lincoln, 4 Neb. 360; Clarke v. Bank,
57 Xeb. 314, 73 Am. St. Rep. 507, 77 X. W. 805; Mowry v.
Sanborn, 65 X. Y. 581. The case at bar dilters from all of
tliese. Tlie statements in the affidavit are made positively, but
at the end, after stating directly that the owner of the land
in question is unknown, there is the further statement, "all
of which I verily believe to be true." It will be seen that
whereas, in the cases cited, the affiant did not make any positive
statements of fact, but merely stated that he believed, or was
informed and Ijelioved. tliat certain facts existed, in tliis case
the statements are made positively and directly, and there is
merely an additional statement that affiiant believes them to l)c
ti'ue. Docs tliis further statement qualify or detract from wliat
goes before? In Webster v. Daniel, 47 Ark. 131, 14 S. W.
550, the affidavit stated "tliat said Peter Welister lias ]ofi the
county of his residence to avoid service of summons, as shown
bv the return of the constable to the writ of summons Is.-iicd
herein." The court held that this was not an affiidavit as to
what the return showed, nor to belief based on information de-
rived from the return, ])ut was positive, and referred to tlic
return as evidence only. In re Keller (D. C), 36 Fed. 681,
a coinplairit in extradition proceedings stared an offense posi-
tivelv and directlv. A statement was added to the effect that
the com])hiinant verilv believed the facts stated to be true. The
court said: "If it is conceded tliat this court can construe tliis
pleading, and reject it, still I think it is not faulty. It is a
statement of a fact which the deponent, in testifying to, verily
believes to be true. A man swears to what he believes to bo
April, 1902.] Leigh v. Green. 595
true, and when he states a, fact under oath he says he verily be-
lieves it to be true. I do not think it is faulty on that account.
I think this affidavit is sufficient.'^ In Pratt v. Stevens, 94
N. Y. 387, the court said: "The addition of the words 'to
deponent's best knowledge, information, and belief does not
modify or detract from the words previously employed. The
general rule is that an oath taken before a competent officer
iiicrely verifies the truth of the facts stated ^^"^ accordincr to
tlie best knowledge, information, and belief of the affiant. The
positive affirmation of the facts sworn to in an affidavit is in
most cases supposed and understood to be according to the best
knowledge, information, and belief of the witness." The true
criterion would seem to lie in the willingness of the witness
to make a positive statement. If his information and knowl-
edge are such that he will make a positive statement of the
fact in question upon oath, his evidence is to be received, though
the weight to be given it might be small by reason of the na-
ture and extent of the information and knowledge froni which
he testifies. On the other hand, if he has a belief or opinion,
but is not so completely satisfied of the fact that he will testify
to it directly, but merely states his belief, then the bare state-
ment of what he believes, but will not state positively upon his
oath, is not to be received, unless the case is one where an
affidavit as to his belief only is required. In the case at bar
tl-iere is a direct and positive statement that the owner is un-
known. The further statement that affiant believes it to bo
true does not detract therefrom. He not only believes it, ho
is willing to testify to it positively. This is much more than a
mere statement of his belief. But construing the affidavit with
counsel for appellee, and giving to the words with which it
closes all the etrect claimed for them, we agree to the conclu-
sion readied at the former hearing, and think it sufficient.
Where a showing by affidavit is required as to facts wliieh are
necessarily matters of information and belief, an affidavit on
in formation and belief ought to suffice. The statute sliould re-
ceive a construction in accordance with common sense. It was
not inf ended to require perjury, and, as it requires affidavit
to matters involving legal opinion and conclusions of law and
fact, it must contemplate that such affidavit will be made upon
the only basis on which such opinions and conclusions can be
reached. As Albert, C, said in the former opinion, with ref-
erence to the required showing that service cannot be made in
the state : '*In the very nature of things, upon this point at
696 American State Reports, Vol. 101. [Nebraska,
least, the aflRant, '*^*® whatever the wording of the affidm it, can
never have positive knowledge. To expressly state that which,
in the absence of such statement, would be necessarily implied,
affects only the form, and not the substance, of the affidavit."
This is no less true of the statement that the owner of the
land in controversy is not known. In a trial whore numerous
witnesses arc successively examined the several facts and cir-
cumstances may be made to appear by competent proof, and
the trior of fact may draw the proper inference therefrom. But
where one man is to make affidavit to the conclusion, he must in
fact state the belief which the information in his possession
gives rise to, whether he expressly says so or not; otherwise
the recjuircd affidavit could never be made. In Colton v. Rupert,
00 :^rich. 318, 27 N. W. 520, the court say: "In such case an
affidavit upon information and belief is all that could reasonably
bo required. To require that such proof should be established
by such evidence as would preclude all reasonable doubt, or of
such character and weight as would preclude a possibility of
error, would deprive this provision of the statute, in a large
majority of cases, of any efficacy, and result in a failure of the
remedy designed to be alTordod by the law. Tlie law itself is
based upon the necessity of the case, in order to enable parties
io roach and deal with property within the jurisdiction of the
fourt." A similar observation is made in Snell v. Mosorvy, 91
Iowa, 322, 59 X. W. 32, and the great weight of autliority sus-
tains this view: See, also, Trew v. Gaskill, ]0 Ind. 205; BonsoU
V. ]')()nselb -11 Ind. 470. We do not think ibc cases of Clarke
V. Bank, 57 Xeb. 311, 73 Am. St. Rep. 507. 7 7 X. W. 805,
and ^lowry v. Sanborn, (55 X. Y. 581, conflict in any way witli
tbo foregoing ]>roposilion. In Clarke v. Bank, 57 Xeb. 311,
73 Am.^ St. Ke[\ 507, 77 X". W. 805, the statute required
proof of certain facts to the satisfaction of tlie judge.
Tbese facts w(M-e capable of })0sitive proof, directly or by cir-
cumstances. 'J'here was no requirement that the jiroof bo by
affidavit solely. Tbo statute exi)ressly stated '^•"* tliat it might
be inaile bv atlidnvit of tlie judgUKMit cr(Mlitor '"or otlierwise."'
11 was tbo clear duty of tbo moving ])arty in tliat case to fur-
nish proof. If ho could not do so l)y his own positive aflidavit,
he must do so by some other means. To furnisli an aflidavit
to coiu'lusions whiih ])roof might ostaldisb. stating them not
as facts. l)ut as matters of belief and opinion, was not enough.
Tbo distinction between such a case and the one at bar is mani-
fest. Xor is ^lowrv v. Sanborn, 05 X. Y. 581. in point. 'J'hero
the affidavit was not as to nonresidenco genorallv, but as to the
April, 1902.] Leigh v. Green. 597
exact place where persons whose residence was known in fact
resided. Such known fact was capable of positive proof.
It is next contended that the land was not made a party
to the foreclosure suit, and that the court did not get jurisdic-
tion over it, because it was insufficiently described. In the
title to the petition and in the published notice, it is described
as the "northwest quarter of section 27, township 31, range
3 west, sixth principal meridian," without stating in what
county or state, nor whether the township in question is north
01 south of the base line. So far as the petition is concerned,
however, the objection is clearly untenable for the reason that
in the body of the pleading it is expressly stated that the land
lies in Knox county, Nebraska. We think the notice suffi-
cient also. The notice sets forth that plaintiff claims to have
purchased said land for taxes at a tax sale held in Knox county,
Nebraska. Thus the context shows that land in this state is
referred to, not merely by the venue of the proceedings, but
by the nature of plaintiff's claim. Although the description
is equally applicable to another tract, situated in the state of
Kansas, there is but one tract in this state to which it can
possibly refer. In Fanning v. Krapfl, 68 Iowa, 244, 26 N. W.
3 33, a published notice was directed to "P. T. B. Hopkins, wife
of John C. Hopkins.'' Said defendant's true name was "T.
r. B. Hopkins." The court said : "The notice should describe
the party to whom it is directed with such certainty as that
neither he nor other persons acquainted ^^^ with or knowing
liim could reasonably be misled by it as to the person for whom
it was intended. If the notice had come to her attention, she
would have learned from it that it was intended for the wife
of John C. Hopkins, which was the name of her own husband;
and that it related to an interest in which W. K. I. Hopkins,
who held the property now in question in trust for her, was
trustee. She could hardly have failed to learn from it that
she was the identical person for wliom it was intended, and she
could not reasonably have been misled by the transposition of
the initial letters of the Christian name which occurred in it."
So in this case. No one who read the notice could reasonably
suppose that it referred, or might refer, to lands in Kansas.
There was a tract answering the description in Knox county,
Nebraska, and the notice set forth that a lien was asserted
against the tract by virtue of a tax sale held in said Knox
county. No one could well be misled by the omission of the
word ''north" under such circumstances. The same kind of
698 American State REroRTS, Vol. 101, [Nebraska,
description has been passed on several times where contained
in deeds, and has been upheld always when there was but one
tract answering the description in the state, if the context or
circumstances indicated the state sufficiently : Long v. Wagoner,
47 Mo. 178; Bcal v. Blair, 33 Iowa, 318; Butler v. Davis, 5
Neb. 521. It may be admitted that the question to be deter-
mined in these cases was somewhat different. But the reasons
assigned seem to us to be applicable. If the whole notice
makes it clear what lands are referred to, we tliink it is enough.
This holding does not conflict with the case of Cohen v. Trow-
bridge, 6 Kan. 385. In that case a notice failing to state
whether the range in whicli the tract attached lay was east
or west of the meridian was held invalid. But there are two
ranges numbered 18 in Kansas, and hence two tracts in that
state were within the terms of the notice. The true rule is
announced in Fanning v. Krapfl, 68 Iowa, 241, 26 N. W. 133.
A great many titles depend upon foreclosure proceedings based
on service by publication. If no roa^^onable ^"*-^ person can
be misled by a description, we ought not to imperil titles by
criticising it overminutely.
Coming now to the construction of sections 4 and 6, article 5,
chapter 77, of the Compiled Statutes, we are satisfied that the
.former opinion is in every way a correct exposition thereof, and
that it should be adhered to. That the term "owner,'^ as used
in said section 4, refers to persons having estates in the land,
and not to encumbrancers and licnliolders, is made very plain.
In what cases it may be said that the owner is "not known"
within the meaning of said section is a question of some diffi-
culty. Is it meant that the condition of the title must be such
that with ordinary diligence one who investigates cannot pro-
nounce in whom it lies? Or is it meant that the person in
whom the title appears to be cannot be identified, located, or
found? If the latter, to whom must he be unknown, the plain-
tiff or the community generally in which the land lies? Or
must he be absolutely unknown? As wo have in this case a
collateral attack on the decree of foreclosure, it may not be
necessarv to go deeply into the questions to which this appar-
ently simple phrase gives rise. We think that the owner of
land is "not known," witliin the meaning of said section, when-
ever the holdor of a tax certificate is unalile by reasonable
diligence and inquiry in the neighborhood of the land in ques-
tion to ascertain the whereabouts of the person or persons ap-
pearing to have legal estates therein, or to ascertain who have
April, 1902.] Leigh v. Green. 599
such estates. In the latter case he cannot know whom to make
parties; in the former he cannot know how to serve them,
since he does not know, nor can he ascertain, whether they are
residents or nonresidents of the state, and if residents, where
they are to be reached. Hence, when the owner of the land is
not known to the holder of a tax certificate in either sense, and
cannot he found upon reasonable inquiry, the holder of sucTi
certificate may make the land a party to foreclosure proceed-
ings. In such case, for reasons already set forth, allegations
in the petition and an affidavit for service by publication on
information and belief to the effect that '^^^ the owner is un-
kno'ttTi are sufficient against collateral attack: Van Fleet on
Collateral Attack, sees. 245, 247.
The plaintiff in the tax foreclosure suit joined one Root as
a party defendant, alleging that he claimed some interest in
the land ; and we have next to consider the effect of this joinder.
It has been seen that all persons having interests in the land
in controversy are not for that reason "owners," within the
meaning of the statute; hence Root might have had an interest
by way of lien or encumbrance, and yet the allegation that the
owner was unknowm might have been entirely true. So long
as the land was properly made a party, it was unnecessary to
join parties who merely claimed interests short of ownership.
They would be cut out by decree and sale without being joined,
under express provisions of the statute. We do not think that
the nature of the proceeding was changed in any way by joining
Root. The land was properly made a party and all necessary
steps to get it before the court were duly liad. Whether the
joinder of Root was irregular we need not decide. The im-
portant point here is that the land was sued. If the plaintiff
sued another defendant also, the propriety of such course is
not to be reviewed collaterally. It may bo remarked, however,
that parties claiming interest in the land are often joined in
cases like the one under consideration in other jurisdictions,
and no question appears to have been made but that the pro-
ceedings are nevertheless in rem, and bind others claiming in-
terests in the property, who have not been joijied: Pritchard
V. Madren, 24 Kan. 48G; Hunger v. Barlow, 39 Iowa, 539;
Xash V. Church, 10 Wis. 703, 78 Am. Dec. 678.
Upon the question as to the effect of making the land a
party and of sale under the decree against the land, we are
entirely satisfied with the construction put upon the statute
in the former opinion. The provisions of the statute are ex-
600 American State Keports^ Vol. 101. [Nebraska,
press that, "in case the land itself is made defendant in the
suit, the deed shall be an absolute bar against all persons, un-
less the court proceedings are void for want of jurisdiction;
the object and intent of this section being to "^^ create a new
and independent title by virtue of the sale, entirely uncon-
nected with all prior titles" : Comp. Stats., sec. 6, art. 5, c. 77.
There is every reason for construing this section to mean what
it says. As remarked by Albert, C, in the former opinion, the
procedure for enforcing tax liens is a part of the revenue sys-
tem of the state. We cannot assent to the argument of counsel
that, after the taxes have been sold to a private purchaser, the
state loses all concern with the matter, and it becomes purely
a case of enforcing an ordinary lien, to be governed by the or-
dinary principles of private law. The state must provide
some means for speedy collection, if it expects to sell its taxes.
If the necessities of public affairs compel tlie state to sell taxes
in order to get in revenues quickly, they also require that every
proper inducement be held out to tax purchasers in order that
taxes be readily salable. The provision for foreclosure by the
purchaser is much less drastic than the common method of con-
veying the land outright to the tax purchaser by an adminis-
trative act, without any judicial inquiry whatever. ]\Ioreover,
there is nothing novel or peculiar about the proceeding. It
is known to the laws of many states, and has been given the
full force and effect intended by tlie statutes : Pritchard v.
Madren, 24 Kan. 486; Chauncey v. Wass, 35 ]\Iinn. 1, 25 X.
W. 457, 30 N. W. 826; Ball v.^ Copper Co., 118 :\[ich. 7, 76
X. W. 130; Freeman on Judgments, sec. 607. We agree to
the conclusion reached at the former hearing that, if the land
was properly made a party, and jurisdiction over it was duly
acquired by publication of notice, a sale under decree of fore-
closure created a new and independent title, and barred all pre-
existing interests of liens.
The statute expressly awards to the purchaser at tax sale a
remedy by suit against the land itself, availal)le wlieiiever the
owner is not known, whereby all persons claiming interests in
the land may be barred completely on sale under decree of
foreclosure. In so far as they give this remedy to the pur-
cliaser, arc sections 4 and 6, article 5, chapter 77, of the Com-
piled Statutes, in conflict with provisions '***■* of the state
and federal constitutions against depriving persons of prop-
erty without due process of law? We think not. The power
of the state to levy taxes obviously carries with it the power
April, 1902.] Leigh v. Green. 601
to collect them, and to provide all means necessary or appro-
priate to insure and enforce their collection. "What method
shall be devised for the collection of a tax the legislature must
determine, subject only to such rules, limitations, and restraints
as the constitution of the state may have imposed. Very sum-
mary methods are sanctioned by practice and precedent":
Cooley's Constitutional Limitations, 521. Sale and issuance of
a tax deed creating a new title and cutting off liens and en-
cumbrances (Bagley v. Castile, 42 Ark. 77; Chambers v. Peo-
ple, 113 111. 509); levy and sale by a tax collector (Springer
v. United States, 102 U. S. 586, 26 L. ed. 253; Sawyer v.
Dooley, 21 Nev. 390, 32 Pac. 437) ; issuance of a warrant by
the treasurer, and levy thereunder (Weimer v. Bunbury, 30
Mich. 201) ; making taxes a paramount lien, cutting out prior
claims and encumbrances (Lydecker v. Land Co., 33 N. J. Eq.
415) ; imprisoning a delinquent collector on a writ of extent
issued summarily (In re Hackett, 53 Vt. 354) ; issuance of
execution by the tax collector (State v. Allen, 2 McCord, 56) ;
seizure and forfeiture of the property taxed (Henderson's Dis-
tilled spirits, 14 Wall. 44, 20 L, ed. 815), are some of the sum-
mary modes of collection which have been upheld. Also, in
Murray v. Improvement Co., 18 How. 273, 15 L. ed. 372, a
statute authorizing a warrant to issue against a public debtor
for seizure of his property, upon an ascertainment of the
amount due by administrative officers was held constitutional.
As was said in Ee Hackett, 53 Vt. 354 : "Taxes are tbe lifeblood
of government. Unless duly assessed, collected, and paid over
to the proper disbursing officer, its functions are paralyzed,
and disintegration and anarcliy arc imminent." In conse-
quence, so long as the tax is valid, all manner of summary
proceedings to collect it have always been sanctioned, the stat-
ute providing for assessment and levy being held ^"^^ to af-
ford due and sufficient notice. Counsel admits this, but con-
tend that summary methods can be employed only by the state
itself, acting directly. They say : "The summary method by
which a party may be devested of his interest in lands without
judicial proceedure can be justified only when be is withholding
moneys belonging to the state. Beyond that the principle can-
not go." Again : "Tbe foreclosure of the lien of a tax cer-
tificate by judicial proceeding by a private party to realize the
amount due under his lien is a judicial proceeding simply, in
which the rights and powers of the sovereignty are not in-
volved." We cannot agree. The state must have its revenues.
603 American State Reports, Vol. 101. [Nebraska,
There is no summary administrative proceeding for collection
of taxes upon land available under our statutes. Foreclosure
is the sole method of enforcement. But the state cannot wait
the slow process of foreclosure and sale. Selling the tax and
authorizing the purchaser to collect it is a method of collec-
tion almost as old as taxation itself. Under our statute the
state sells to a purchaser, and gives to him the same remedy
it would have had had it chosen or been able to wait. It is
obvious that purchasers might not buy unless given some sure
and speedy remedy. The interests of the state and its necessi-
ties demand that great inducements be held out to tax pur-
chasers, otherwise the state would not get in its revenues.
Hence, we see no reason why a remedy which the state may
employ directly to collect its revenues may not be awarded to
an assignee to whom the state has been obliged to sell its claim
in order to realize promptly thereon. The right of the state
to exercise other powers through individuals is undoubted. In
the Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394, Miller,
J., said: "If this statute had imposed on the city of New Or-
leans precisely the same duties, accompanied by the same privi-
leges, which it has on the corporation which it created, it is
believed that no question would have been raised as to its con-
stitutionality. In that case the effect on the butchers in pur-
suit of their occupation and on the public would be the same
as it is now. Why cannot the ^'^^ legislature confer the same
powers on another corporation, created for a lawful and use-
ful public ol)joet, that it can on the municipal corj)oration al-
ready existing." The exercise of the right of eminent domain
hy corporations is an everyday occurrence, and section 3'J, ar-
ticle 2, cha])ter 93a, of the Compiled Statutes, allows it to pri-
vate individuals in furtherance of works of irrigation. If tlie
state could authorize the county to proceed by suit against the
land in case the delinquent owner was unknown, it could nqually
authorize a y)rivate purchaser of the taxes to maintain such pro-
ceeding, and for the same reasons.
We should not forgot, however, tliat the proceeding in ques-
tion is not summary in the sense in which tliat term may be
applied to the usual run of methods of collecting taxes. It
is not as if the purchaser were authorized to advertise and sell
the land, or to have the sheriff do so on request. He must
wait the expiration of a long period of redemption. He must
tlien bring a suit, make all proper parties if the owners are
known, publish due notice ujjon showing by affidavit if they are
April, 1902.] Leigh v. Green. G03
r.ot, make proper proofs of the levy and sale and the amount
due to a court in a proceeding in which every person interested
may intervene, and then, after decree of foreclosure, await the
due course of judicial sale and confirmation. The opportuni-
ties afforded to all persons affected to make known their claims
are ample. They have no right to lie hy and suffer the taxes
to get many years in arrear, without exercising any diligence
to protect their claims.
We recommend that the former judgment be adhered to.
Barnes and Oldham, CC, concur.
By the COURT. For the reasons stated in the foregoing
opinion, the former judgment is adhered to.
The Principal Case was affirmed by the supreme court of the
United States in Leigh v. Green, 193 U. S. 79, 24 Sup. Ct. Kep. 390.
Mr. Justice Day delivered the opinion of the court as follows:
"The facts essential to the determination of this case are briefly
summarized as follows: Irwin Davis was the owner of certain lands in
Knox county, Nebraska. On the twenty-fourth day of November,
1880, an action was begun by Algernon S. Patrick against Davis, in
the district court of the county, and an attachment was issued and
levied upon the lands. The case was afterward removed to the cir-
cuit court of the United States for the district of Nebraska, on Oc-
tober 18, 1882, where on January 21, 1890, an order for the sale of
the lands in question was made for the satisfaction of the judgment,
and the same were sold on May 15, 1894, by the United States mar-
shal to Lionel C. Burr. Burr afterward conveyed the lands to Craw-
ford and Peters. On June 25, 1894, Crawford and Peters conveyed
the premises to Alvin L. Leigh, the plaintiff in error in the present
case.
"Pending said attachment proceedings, on December 28, 1882, a
deed was filed for record in the clerk's office of Knox county, pur-
porting to convey the lands to Henry A. Eoot on October 8, 1880. Af-
terward, on May 12, 1894, a decree was rendered in the district court
of Douglass county, Nebraska, in a cause wherein said Patrick was
plaintiff and Davis and others were defendants, setting aside the
deed from Davis to Boot as fraudulent and void as against the said
Patrick.
"In 1891 actions were brought in the district court of Knox county,
wherein the Farmers' Loan and Trust Company was plaintiff and
Henry A. Eoot and different subdivisions of the lands were defend-
ants, for the foreclosure of certain tax liens, which actions, taken
together, cover the lands in controversy in the present suit.
"In the same year, 1891, decrees were entered in those cases, and
orders made directing the sale of the lands for the satisfaction of
604 American State Reports^ Vol. 101. [Nebraska,
the amounts found due by the decrees. In pursuance of said decrees
the lands were sold by the sheriff to Henry S. Green, defendant in
error in the present action. The deeds of conveyance were made and
delivered to him by the sheriff. Plaintiff in error claims title be-
cause of the attachment proceedings, and defendant in error bases
his claim to title upon the proceedings had for the foreclosure of the
tax liens. This suit was brought by the plaintiff in error Leigh, in
the district court of Knox county, to quiet title to the lands in con-
troversy,
"In that court a decree was rendered in favor of the plaintiff in
error Leigh, which decree was reversed by the supreme court of
Nebraska, and the cause remanded with directions to render a de-
cree in favor of the defendant Green,
"This writ of error is prosecuted to review the judgment of the
supreme court of Nebraska.
"A motion is made to dismiss because the claim of impairment of
a right secured by the fourteenth amendment was not made in the
courts of Nebraska until the motion for rehearing was filed in the
supreme court. We are unable to discover a specific claim of this
character made prior to the motion for rehearing. In the motion
reference is made to the failure of the Nebraska supreme court to
decide the claim heretofore made, that the statute of Nebraska was
unconstitutional because of the alleged violation of the right to due
process of law guaranteed by the fourteenth amendment to the con-
stitution of the United States, Be this as it may, the supreme court
of Nebraska entertained the motion and decided the federal ques-
tion raised against the contention of the plaintiff in error. In such
case the question is reviewable here, although first presented in the
motion for rehearing: Mallett v. North Carolina, 181 U. S. 5S9, 21
Sup. Ct. Eep. 730, 45 L. ed. 1015.
"The federal question presented for our consideration is briefly
this: Is the Nebraska statute under which tlie sale was made an 1
under which the defendant in error claims title, in failing to make
provision for service of notice of the pendency of the proceedings
upon a lienholder, such as Patrick, a deprivation of property of the
lienholder without due process of law within the protection of the
fourteenth amendment f
"The statutes of Nebraska under which the conveyances were
made to the Farmers' Loan and Trust Company arc:
" 'Sec. 1. That any person, persons, or corporation having by virtue
of any provisions of the tax or revenue laws of this state a lien upon
any real property for taxes assessed thereon, may enforce such lien
by an action in the nature of a foreclosure of a mortgage for the
sale of 80 much real estate as may be necessary for that purpose and
costs of suit.*
" 'Sec, 4, Service of process in causes instituted under this chap-
ter shall be the same as provided by law in similar causes in the dis-
April, 1902,] Leigh v. Geeen. 605
trict courts, and where the owner of the land is not known the ac-
tion may be brought against the land itself, but in such case the
service must be as in the case of a nonresident; if the action ia
commenced against a person who disclaims the land, the land itself
may be substituted by order of court for the defendant, and the ac-
tion continued for publication,'
" 'Sec. 6. Deeds shall thereupon be executed by such sheriff, which
shall vest in the purchaser the same title that was vested in the de-
fendant to the suit at time of the assessment of the tax or taxes
against the same; and such deed shall be an entire bar against the
defendant to such suit, and against all parties or heirs claiming un-
der such defendants; and in case the land itself is made defendant in
the suit, the deed shall be an absolute bar against all persons, unless
the court proceedings are void for want of jurisdiction; the object
and intent of this action being to create a new and independent title,
by virtue of the sale, entirely unconnected with all prior titles.'
"The evident purpose of section 4, where the owner of the land
is unknown, is to permit a proceeding in rem, against the land itself,
with a provision for service as in case of a nonresident. By section
6 it is provided that in cases where the land itself is made defend-
ant the deed shall be an absolute bar against all persons, unless the
court proceedings are void for want of jurisdiction. The object and
intent of the action is defined to be 'to create a new and inde-
pendent title, by virtue of the sale, entirely unconnected with all
prior titles.'
"The supreme court of Nebraska has held that the term 'owner,'
as used in the fourth section, applies to the owner of the fee, and
does not include a person holding a lien upon the premises. It is
this section (4) and section 6 which are alleged to be in conflict with
the fourteenth amendment. The argument for the appellant eon-
cedes that the state may adopt summary or even stringent measures
for the collection of taxes so long as they are 'administrative' in
their character; and it is admitted that such proceedings will not
devest the citizen of his property without due process of law, al-
though had without notice of assessments or levy, or of his delin-
quency and the forfeiture of his lands. But the argument is, that
when the state goes into court and invokes judicial power to give
effect to a lien upon property, although created to secure the pay-
ment of taxes, the same principles and rules prevail which govern
private citizens seeking judicial remedies, and require service on all
interested parties within the jurisdiction. The right to levy and
collect taxes has always been recoj/uized as one of the supreme powers
of the state, essential to its maintenance, and for the enforcement
of which the legislature may resort to such remedies as it chooses,
keeping within those which do not impair the constitutional ri^^lits of
the citizen. Whether property is taken without due process of law
depends upon the nature of each particular case. If it be such an ex-
606 American State Reports, Vol. 101. [Nebraska,
ercise of power 'as the settled maxims of law permit and sanction,
and under such safeguards for the protection of individual rights as
those maxims prescribe for the classes to which the one in question
belongs,' it is due process of law: Cooley's Constitutional Limitations,
7th ed., 506.
* ' The most summary methods of seizure and sale for the satisfac-
tion of taxes and public dues have been held to be authorized, and
not to amount to the taking of property without due process of law,
as a seizure and sale of property upon warrant issued on ascertain-
ment of the amount due by an administrative officer (Murray v.
Hoboken Land etc. Improv. Co., 18 How. 272, 15 L. ed. 372), the seiz-
ure and forfeiture of distilled spirits for the payment of the tax:
Henderson's Distilled Spirits, 14 Wall. 44, 20 L. ed. 815. The sub-
ject underwent a thorough examination in the case of Davidson v.
Xew Orleans, 96 U. S. 97, 24 L. ed. 616, in which Mr. Justice Miller,
while recognizing the difficulty of defining satisfactorily due process of
law in terms which shall apply to all cases, and the desirability of
judicial determination upon each case as it arises, used this lan-
guage: 'That whenever, by the laws of a state, or by state au-
thority, a tax, assessment, servitude, or other burden is imposed upon
property for the public use, whether it be for the whole state or of
some limited portion of the community; and those laws provide for
a mode of confirming or contesting the charge thus imposed, in the
ordinary courts of justice, with such notice to the person, or such
proceeding in regard to the property, as is appropriate to the nature
of the case — the judgment in such proceedings cannot be said to
deprive the owner of his projterty without due process of law, how-
ever obnoxious it may be to other objections.'
"In the present case, the argument is that as the state has not
seen fit to resort to the drastic remedy of summary sale of the land
for delinquent taxes, but has created a lien in favor of a purchaser,
at tax sale, after ponnittiiig two years to elapse in which the owner
or lienholder may redeem the property, it has, in authorizing a fore-
closure without actual service, taken property without due process
of law, because the proceedings and sale to satisfy the tax lien do not
require all lienholders within the jurisdiction of the court to be served
with process. If the state may proceed summarily, we see no reason
why it may not resort to such judicial proceedings as are authorized
in this case. And if the state may do so, is the property owner in-
jured by a transfer of such rights to the purchaser at the tax sale,
who is invested with the authority of the state? In Davidson v.
New Orleans, 96 U. S. 97, 24 L. ed. 616, the objection was made that
the state could not delegate its power to a private corporation to do
certain public work, and by statute fix the price at which the wtTj
should be done. In that connection, speaking of the Slaughter-
house Cases, 16 ^Yall. 3G, 21 L. ed. 394, Mr. Justice Miller said:
'The right of the state to use a private corporation and confer u])on
April, 1902.] Leigh v. Geeen. 607
it the necessary powers to carry into effect sanitary regulations was
affirmed, and the decision is applicable to a similar objection in the
case now before us.*
"In the statute under consideration, for the purpose of collecting
the public revenue, the state has provided for the enforcement of
a lien by the purchaser at a tax sale, and authorized him to proceed
against the land subject to the tax, to enforce the right conferred
by the state. The state has a right to adopt its own method of col-
lecting its taxes, vv-hich can only be interfered with by federal au-
thority when necessary for the protection of rights guaranteed by
the federal constitution. In authorizing the proceedings to enforce
the payment of the taxes upon lands sold to a purchaser at tax sale,
the state is in exercise of its sovereign power to raise revenues es-
sential to carry on the affairs of state and the due administration of
the laws. This -fact should not be overlooked in determining the
nature and extent of the powers to be exercised. 'The process of
taxation does not require the same kind of notice as is required in
a suit at law, or even in proceedings for taking private property
under the power of eminent domain. It involves no violation of due
process of law when it is executed according to customary forms and
established usages, or iu subordination to the principles which under-
lie them': Bell's Gap E. Co. v. Pennsylvania, 134 U. S. 232, 239, 33
L. ed. 892, 896, 10 Sup. Ct. Eep. 533, 535.
"In authorizing the proceedings under the statute to enforce the
lien of the purchaser, who has furnished the state its revenue in
reliance upon the remedy given against the land assessed, the state
is as much in the exercise of its sovereign power to collect the pub-
lic revenues as it is in a direct proceeding to distrain property or
subject it to sale in summary proceedings.
"Nor is the remedy given in derogation of individual rights, as
long recognized in proceedings in rem, when the fourteenth amend-
ment was adopted. The statute undertakes to proceci in rem, by
making the land, as such, answer for the public dues. Of course,
merely giving a name to an action as concerning the thing rather
than personal rights in it cannot justify the procedure if in fact the
property owner is deprived of his estate without due process of
law. But it is to be remembered that the primary object of tlie
statute is to reach the land which has been assessed. Of such pro-
ceedings, it is said in Cooley on Taxation, second edition, 527: 'Pro-
ceedings of this nature are not usually proceedings against parties;
nor, in the case of lands or interests in lands belonging to persons
unknown, can they be. They are proceedings which have rognrd to
the land itself rather than to the owners of the land; and if the
owners are named in the proceedings, and personal notice is pro-
vided for, it is rather from tenderness to their interests, and in order
to make sure that the opportunity for a hearing shall not be lost
to them, than from any necessity that the case shall assume that
608 American State Reports, Vol. 101. [Nebraska,
form.' And see Winona etc. Land Co. v. Minnesota, 159 U. S. 537,
40 L. ed. 247, 16 Sup. Ct. Rep. 83.
"Such being the character of the proceedings, and those interested
having an opportunity to be heard upon application, the notice was
in such form as was reasonably calculated to bring the same to the
attention of those interested in the lands.
"This notice was to all persons interested in the property. The
lienholder, the Nebraska court has held, may appear in court and
set up his claim. The notice was good as against the world, and all
that is necessary when the proceedings are in rem^ 'Laws exist un-
der which property is responsible for damages done by it, for taxes
imposed upon it These same laws often authorize the obliga-
tion by them imposed upon the property to be enforced by proceed-
ings in which the property is the defendant and in which no service
of process is required except upon such property. The judgment re-
suiting from such a proceeding is in rem, and satisfactiou thereof is
produced by an execution authorizing the sale of the property. The
sale acts upon the property, and, in so acting, necessarily affects all
claimants thereto': Freeman on Judgments, sec. 606.
"When the proceedings are in personam the object is to bind the
rights of persons, and in such cases the person must be served with
jiroccss; in proceeding to reach the thing, service upon it and such
proclamation by publication as gives opportunity to those interested
to be heard upon application is sufficient to enable the court to ren-
der judgment: Cross v. Armstrong, 44 Ohio St. 613, 624, 10 N. E.
160. Where land is sought to be sold, and is described in the no-
tice, a technical service upon it would add nothing to the procedure
where the owner is unknown. The publication of notice which de-
scribes the land is certainly the equal in publicity of any seizure
which can be made of it.
"In Tyler v. I^egist ration Court Judges, 175 ]\rass. 71. HI Ti. R. A.
433, 55 N. K. 812, the supreme judicial court of Massadiusetts up-
held as constitutional an act providing for registering and confirm-
ing titles to lands, in which the original registration deprive<l all
persons, except the re<^istcred owner, of any interest in the land,
and the act ga\o judicial powers to the riM'order after the original
registration although not a judicial oflicer, and tiiere was no jiro-
vision for notice before registration of transfer or dealings snb-
8(><|iuMit to the original registration. The majority opinion was ile-
livcred by ^Ir. .Justice Holmes, then chief justice of jrassacluisetts.
In th(> course of the opinion, spea]\ing of the M^assnchnsetts T?ill of
Ivights and the fourteenth amendment, he said: 'Tjooked at either
from the point of view of history or of the necessary requirements
of justice, a proceeding in rem. dealing with a tangible res, may be
instituted and carried to judgment witliout personal service upon
claimants witliin the state or notice by name to those outside of it,
and not encounter any provision of either constitution. Jurisdiction
is secured by the power of the court over the res.'
April, 1902.] Leigh v. Green. 609
"In Huling v. Kaw Valley E. etc. Co., 130 U. S. 559, 9 Sup. Ct.
Eep. 603, 32 L. ed. 1045, it was held that notice by publication in pro-
ceedings to condemn land for railway purposes was sufficient notice
to nonresident owners, and was due process of law as to such owners.
So as to adjudications of titles of real estate within the limits of
the state as against nonresident owners, brought in by publication
only: Arndt v. Griggs, 134 U. S. 316-327, 10 Sup. Ct. Eep. 557, 33
L. ed. 918-922; Hamilton v. Lewis, 161 U. S. 256-274, 16 Sup. Ct. Eep.
5K5, 40 L. ed. 691-699.
"The principles applicable which may be deduced from the au-
thorities we think lead to this result: Where the state seeks directly
or by authorization to others to sell land for taxes upon proceedings
to enforce a lien for the payment thereof, it may proceed directly
ag"inst the land within the jurisdiction of the court, and a notice
which permits all interested, who are 'so minded,' to ascertain that
it is to be subjected to sale to answer for taxes, and to appear and
be heard, whether to be found within the jurisdiction or not, is due
process of law within the fourteenth amendment to the constitution.
"In the case under consideration the notice was sufficiently clear
as to the lands to be sold; the lienholders investigating the title
could readily have seen in the public records that the taxes were
unpaid and a lien outstanding, which, after two years, might be fore-
closed and the lands sold and, by the laws of the state, an indefeasiblo
title given to the purchaser. Such lienholder had the right for two
years to redeem, or, had he appeared in the foreclosure case, to set
up his rights in the land. These proceedings arise in aid of the
right and power of the state to collect the public revenue, and lid
not, in our opinion, abridge the right of the lienhoUlor to the pro-
tection guaranteed bj the constitution against the taking of property
without due process of law.
"The judgment of the supreme court of Nebraska is affirmed."
The Constitiitinnalify of statutes providing for proceedings against
unknown owners is discussed in the monographic note to McClymond
V. Noble, 87 Am. St. Eep. 358-368. A statute declaring that upon
the nonpayment of taxes land shall be forfeited to the state without
judicial proceedings is unconstitutional as depriving the owner of
property without due process of law: Parish v. East Coast Cedar Co.,
133 X. "c. 478, 45 S. E. 768, 98 Am. St. Eep. 718, and see the cases
cited in the cross-reference note thereto.
Am. St. Rep., Vol. 101—39
610 American State Eeports, Vol. 101. [Nebraska,
COUNTY OF HARLAN v. WHITNEY.
[G5 Neb. 105, 90 N. W. 993.]
SURETYSHIP— Security for Indemnity.— A Creditor is En-
titled to enforce for his own benefit any securities which the principal
debtor has given his surety by way of indemnity, (p. 611.)
SURETYSHIP — ^Right of Obligee to Assigned Securities. —
If sureties on the bond of a county treasurer assign to the county
securities given them by the principal by way of indemnity, the
county may enforce them, although the sureties might not have done
so without first discharging the obligation, (p. 611.)
MORTGAGE — Consideration. — The Contingent Liability of a
principal to his sureties is sufficient consideration for a mortgage
given to indemnify them after the execution and delivery of the
bond, and before any breach, (p. 611.)
MORTGAGE — Parol Evidence to Explain. — If a deed recites
that the grantee is trustee for the sureties on the bond of the grantor,
parol evidence is admissible to identify the sureties and the obliga-
tion referred to. (p. 612.)
MORTGAGE to Indemnify Sureties— Validity. — A mortgage
given by a county treasurer to indemnify the sureties on his bond
is not void because at the time of its execution he was suspected of
embezzlement, and it was given to protect them against consequent
liability, (p. 612.)
SURETYSHIP — Subrogation. — A County, after default in the
conditions of the bond of its treasurer, may take advantage of se-
cureties given by him to his sureties, either by way of subrogation
or by procuring an assignment from the sureties, (p. 613.)
DEED FOR SECURITY — Liability not Limited by Considera-
tion Recited. — The security of a deed, in form absolute, given to in-
demnify sureties, is not limited to the nominal money consideration
recited, but extends to the full amount for which the sureties ulti-
mately prove liable, (p. 613.)
.Tolm Evcrson, for the appcHants.
A. M. Beresford, for the respondents.
io« rOUXD, C. Ezra S. Whitney, as treasurer of the
ccunty of HarUm, had given the required bond, with several
sureties, for due performance of the duties of his office. To-
ward tlie end of his term a suspicion arose that he was short
in his accounts. Thereupon, in order to indemnify said sure-
ties, he and his wife executed deed conveying the lands in con-
troversy to one Roberts as trustee, reciting expressly that he
was trustee for the sureties on said Whitney's official bond.
A shortage having occurred as anticipated, the successor of the
trustee conveyed said property to the county, which brought
this suit, alleging that the deed was intended as a mortgage
June, 1902,] County of Harlan v. Whitney. 611
to secure said sureties and the county against loss, and pray-
ing foreclosure. A decree was rendered accordingly, from
which this appeal has been taken.
It is argued that there is no evidence to sustain the decree
because the proof shows clearly that said conveyance was in-
tended to secure the sureties only, and there is no evidence in
support of the allegation that it was intended for security of
the county as well, nor is it shown that the sureties have paid
the amount due on the bond. But it is elementary that a
creditor is entitled to enforce for his own benefit any securities
which the principal debtor has given his surety by way of in-
demnity. In equity, such securities are considered as held by
the surety ***'' in trust for payment of the principal obligation.
In a sense they belong to the creditor, and proof that they
were given to indemnify the surety would be sufficient to sup-
port the allegation that they were given for further security
of the creditor, if such an allegation were necessary: Blair
State Bank v. Stewart, 57 Neb. 58, 63, 77 K W. 370; Long-
fellow V. Barnard, 58 Neb. 612, 617, 76 Am. St. Rep. 117, 79
N. W. 255. In the latter case it was held that "a mortgage
given to indemnify a surety or guarantor is in legal effect a
security to the owner of the debt, even though he did not origi-
nally rely on it or know of its existence." It follows that when
the sureties, through their trustee, assigned the security to the
county by conveyance of the land, the county could enforce it,
although the sureties might not have done so themselves with-
out first discharging the obligation. The security is regarded
as given for discharge of that obligation, and must be applied
thereon, either directly, or by satisfying those who have dis-
cliarged it. Equity does not insist upon the circuitous pro-
cedure of payment by the sureties and enforcement by them. It
looks to the substance, and will permit or even require an ap-
plication upon the debt directly at suit of the creditor: Meeker
V. Waldron, 62 Neb. 689, 87 N. W. 539.
Several points have been urged against the validity of the
deed, which require brief notice.
It is said that there was no consideration, since the deed was
made long after execution and delivery of the bond and before
any breach. But it is clear that the contingent liability of the
principal to his sureties was sufficient consideration for a mort-
gage: Longfellow v. Barnard, 58 Neb. 612, 618, 76 Am. St.
Kep. 117, 79. N. W. 255, and cases cited. The authorities re-
lied upon by counsel have reference only to promises and con-
612 Amekican State Eeports, Vol. 101, [Nebraska,
tracts for indemnity, which are obviously governed by a different
rule.
It is claimed, further, that the deed is void for uncertainty,
for the reason that it does not sufficiently designate or describe
the beneficiaries. Tlie deed recites expressly that the property
is conveyed to the grantee "as trustee **** for the sureties on
the official bond of the said Ezra S. Whitney." It was cer-
tainly competent to show by extrinsic evidence that Whitney
was county treasurer, that he had given an official bond as such,
and that his intention in executing and delivering the deed was
to secure the sureties thereon. Counsel argues that it appears
Whitney held the office for two terms, and gave two bonds, and
that there is nothing to show which bond was referred to. But
the obvious purpose is to secure those sureties who stood in
need of indemnity, and the evidence introduced by plaintiff
shows that such was the grantor's intent. Parol evidence
was admissible to show who were the sureties referred to as bene-
ficiaries (Johnson v. Calnan, 19 Colo. 168, 41 Am. St. liep.
234, 34 Pac. 905; Ivco v. ]\Iethodist Episcopal Churcli of Et.
Edward, 52 Barb. (N. Y.) 116; Cole v. Sat^op Ry. Co., 9 Wash.
487, 43 Am. St. Pep. 858, 37 Pac. 700 ; Bartlett v. Remington,
59 N. H. 364; Bayles v. Grossman, 5 Ohio Dec. 354), and also
to identify the debt or obligation intended to l>e seciired : Jones
V. Xew York Guaranty etc. Co., 101 U. S. 622, 25 L. ed. 1030;
Clark V. Houghton, 12 Gray (Mass.), 38; Douglas v. Town of
Chatham, 41 Conn. 211; Cutler v. Steele, 93 Mich. 201, 53 N.
W. 521; Paine v. Benton, 32 Wis. 491.
Next it is argued that the deed is void because at the time
it was made the grantor was suspected of having embezzled
public funds, and the parties contemplated emliozzloiiient or
defalcation, and sought to protect themselves against tbe conse-
quent liability. But the deed was not intended to permit
Whitney to embezzle, or to protect him in so doing. The sure-
ties did not agree to save their principal harmless in case he
embezzled public funds. They were indemnified, not be. He
gave them security against liability upon the bond which they
had signed to permit him to enter upon his office. The purpose
was to insure tbat the county get tlie moneys due it, not that
its moneys should be abstracted with impunity.
Finally, it is said that a county may not demand of a county
treasurer any other or further security than the ***^ bond re-
quired by law. Granting this proposition, we are unable to see
any reason why, after default in the conditions of such bond.
June, 1902.] County of Harlan v. Whitney. 613
the county may not take advantage of securities given by the
treasurer to the sureties thereon, whether hy way of suit for
subrogation or by procuring an assignment from the sureties,
ar: any other creditor might do.
Counsel complains of the decree rendered for two further
reasons : That the liability of the land mortgaged was not lim-
ited to the consideration recited in the deed, and that there
was no sufficient proof that proceedings at law had not been
taken to collect the amount due. Neither point is well taken.
The recital of a comparatively trivial money consideration is ob-
viously a mere form. The deed states and the evidence shows
tliat it wa? given to indemnify the sureties. It was not in-
tended to indemnify them to the extent of one thousand dollars
only, but for the full amount for which they might ultimately
prove to be liable, which was over eleven thousand dollars.
There is nothing on the face of the deed or in the evidence to
indicate an intention to limit its security to the sum recited
as consideration, and the recital, of itself, being clearly formal,
could not have that effect. The petition contains the required
allegation that no proceedings have been had at law. It ap-
pears in evidence that the sureties turned their security over
to the county in settlement of the balance for which they were
liable on the bond. After doing so they could not sue Whitney
for anything secured by the deed, because, so far as they were
concerned, the deed had already settled the liability it secured.
The county could not sue at law on the bond, because it had
taken the security in settlement thereof. In the absence of
ar.y evidence to the contrary, a prima facie showing is enough :
I'ropident etc. Ins. Co. of Xorth America v. Parker, 64 Neb.
41J, 89 X. W. 1010.
The decree is sustained by the evidence and is in accordance
with law. We recommend that it be affirmed.
Barnes and Oldham, CC, concur.
**<> By the COURT. For tlie reasons stated in the foregoing
opinion^ the judgment of the district court is affirmed.
A Creditor, in case of tlie default of his debtor, may avail himself
of securities given by the debtor to his surety to indemnify the latter
against liability for the debt. This is the corollary of the doctrine
that a surety is entitled to the benefit of any security the creditor
may have taken from the principal: See the monographic note to
American Bonding Co. v. National etc. Bank, 99 Am. St. Eep, 509,
510, on tlie right to subrogation.
614 American State Keports, Vol. 101. [Nebraska,
TESKE V. DITTBERNER.
[65 Neb. 167, 91 N. W. 188.]
WILL, WHAT IS —Conveyance in Consideration of Support.
An oral agreement between a son and his parents that he shall, in
consideration of carrying on their business and providing for their
support, become vested, upon their death, with the title to the
fajnily homestead, is testamentary in character, (p. 615.)
WILL, WHAT IS.- The Sole Test by Which to Ascertain
whether an instrument or agreement purporting to affect the title
to land is testamenary, is to inquire whether it undertakes to vest
any present interest to title therein, (p. 615.)
HOMESTEAD — Oral Transfer in Consideration of Support.—
An oral agreement between a son and his parents that he shall, in con-
sideration of carrying on their business and providing for their support,
become vested, upon their death, with the title to the family home-
stead, contravenes the statute of frauds and the statute of wills; but,
if fairly made and substantially performed by the son, equity may
grant him relief in case the parents repudiate the agreement, (p.
618.)
It appears from the former decision of this case in G3 Neb.
607, 88 N. W. 658, that the parents of Carl Tcske entered into
an agreement with him that he should, in consideration of car-
rying on their business and providing for their support, become
vested, upon their death, with the title to the family homestead.
lie performed this agreement up to the time of his mother's
death, and for some time thereafter, when the father left the
homestead, took up his residence with his daughter, IMartlia
Dittberner, and conveyed the property to her.
William B. Allen and Willis E. Eeed, for the appellants.
McKillip & ]\rcAllistcr and Eeeder & Ilobart, for the respond-
ent.
^^^ A"MES. C. This case comes before us upon a rehear-
ing granted from a former decision of this court pubished in
Teske v. Dittberner, G'3 Xeb. G07, 88 N. W. G58. Reference is
made to that opinion for a sufficient statement of the facts in-
volved in the litigation. T^pon tlie reargument considerations
and autlioritics wore urged upon us wliieh, on account of tlie
hurrif-d and insufficient manner in wliich the cause was pre-
sented on the former hearing, escaped our attention at that
time, and which have convinced us that we fell into grievous
error in the disposition which we made of the case. We at that
time labored under the impression that, inasmuch as the prem-
June, 1902.] Teske v. Dittbernee. 615
ises sought to be recovered were admittedly the homestead of
the defendant Frederick Teske, and the agreement in contro-
versy was confessedly not in writing, the plaintiff was pre-
cluded from obtaining the relief prayed by section 4 of chap-
ter 36 of the Compiled Statutes, which enacts that "the home-
stead of a married person cannot be conveyed or encumbered
imless the instrument by which it is conveyed or encumbered
is executed and acknowledged by both husband and wife." By
section 1 of the act a homestead is defined as consisting of the
dwelling-house in which the claimant resides and its appurte-
nances, and the land on which the same is situated, not ex-
ceeding one hundred and sixty acres in all to the value of not
exceeding two thousand dollars. By the seventeenth section
it is enacted that when the claimants are married persons, the
person from whose property the homestead was selected may
dispose of it by will, subject to a life estate of the survivor
therein. The right, therefore, of Frederick Teske to make a
testamentary disposition ^^^ of the property in question, sub-
ject to the inchoate life estate therein of his wife (now de-
ceased), is expressly preserved to him by the statute. It is
quite likely that he should not have been held to have been de-
prived of that right in the absence of the express words of
the act: Ferguson v. :^,Iason, GO Wis. 377, 19 N. W. 420; Gee
V. Moore, 14 Cal. 472; Stewart v. Mackey, 16 Tex. 56, 67
Am. Dec. 609.
It cannot, we think, be successfully contended tb.at the agree-
ment which the referee has found to have been made between
Carl Teske and his parents was not testamentary in its char-
acter, nor can it well be disputed that he has fully performed
and offered to perform on his part. The decision of the ques-
tion does not depend npon the choice of any particular words
or the use of any special form of expression, but "the doctrine
of the cases is that wliatever the form of the instrument, if
it vests no present interest, but only appoints what is to be done
after the death of the maker, it is a testamentary instrument'":
Turner v. Scott, 51 Pa. St. 126; Reed v. Ilazleton, 37 Kan.
321, 15 Pac. 177; Hazleton v. Piced, 46 Kan. 73, 26 Am. St.
Eep. 86, 26 Pac. 450; Sutton v. Hayden, 62 Mo. 101. These
cases establish the doctrine that the sole test by whicli to as-
certain whether an instrument or agreement purporting to af-
fect the title to land is testamentary, is to inquire whether it
undertakes to vest any present interest or title therein. If it
does not, but the title is to remain unaffected until the death
616 American State Reports, Vol. 101. [Nebraska,
of the owner, and an interest is then to accrue to the other
party to the agreement, the contract is testamentary, and in or-
dinary cases revocable.
The only remaining questions are whether an oral agree-
ment to make a testamentary disposition of real estate, made
in consideration of services substantially performed, such as
were rendered by the appellee, Carl Teske, will be enforced
by the court, and, if so, what, under circumstances like those
in the case at bar, should be the form of the relief granted.
The former of these questions seems to have been definitely an-
swered in the affirmative by this court in Kofka v. Eosicky, 41
Xeb. 328, 43 Am. St. Eep.^635, 59 N. W. 788, 25 L. E. A.'207.
See, also, Svenburg *''<* v. Fosseen, 75 Minn. 350, 74 Am. St.
Eep. 490, 78 N. W. 4, 43 L. E. A. 427. In the opinions in
these tv.'o eases a large number of previous decisions to the same
effect are collated, which apparently fortify the doctrine beyond
the possibility of successful assault. In all these cases it is
held that part performance takes the transaction out of the
operation of the stiitute of frauds, and that when, as in this
case, such performance is of such nature as that it cannot be
measured or adequately compensated in damages, equity will
interfere for the purpose of protecting the rights of the party
injured. In Hazleton v. Eeed, 46 Kan. 73, 26 Am. St. Eep.
S6, 26 Pac. 450, the relief sought seems to have been denied
for the sole reason that in the opinion of the court the services
rendered in that case were not of such a nature that they could
not be adequately recompensed by the ordinary legal procedure.
AVe do not think that the circumstances of this case bring it
within tlie exception.
It does not seem to be an obstacle to the granting of relief
in such cases as this that the testator, if he may properly be
so called, who has conveyed away his property in violation of
his agreement, is still living. Specific performance, strictly
so called, cannot be decreed because the father is still living,
and until his death the right of the son to have the title vested
in himself will not have accrued. But such a situation has al-
ready been considered by the courts, and the difficulty thence
arising has been solved to our satisfaction. In Van Dyne v.
Vrceland, 11 N. J. Eq. 370, followed and affirmed in Davison
V. Davison, 13 X. J. Eq. 240, approved in Gupton v. Gupton,
47 Mo. 37, and in Sutton v. Hayden, 62 Mo. 101, it was held
that in instances of this kind the grantee, with notice and in
fraud of the testamentary agreement, will he decreed to hold
June, 1902.] Teske v. Dittbernek. 617
the title in trust until the happening of the event vesting a
present right thereto in the complainant, and will then be re-
quired to convey it to the latter. The conclusion thus arrived
at is in contravention of the letter both of the statute of frauds
and of the statute of wills, and beyond doubt transactions of
the kind in question should be closely scrutinized, or else they
may open the door to the ^'^^ exercise of the grossest kind of
undue influence and to frauds and abuses of the most serious
descriptions; but the rules of equity applicable to them, when
free from any of these objections, are well established by a
large number of decisions, many of which have received the
express approval of this court. There is nothing in the record
to indicate that the appellee, Carl Teske, has been guilty of
any objectionable practices, and it is beyond question that he
has spent many of the best years of his life in the performance
in good faith of the testamentary agreement, which the referee
has found upon sufficient evidence to have been entered into be-
tween himself and his parents. It does not appear to us that
for a repudiation of the agreement by his father he could be
adequately compensated in damages. The fatlier is very old
and feeble, both in mind and body, so that it is not unlikely
that his conveyance to his daughter, if not unduly influenced,
was made in response to some temporary whim or resentment.
That it was not the result of any fixed determination on his
part is indicated by the fact that he has dismissed his appeal in
this court, and manifested a desire that the judgment of t1ie
district coTirt be affirmed. At or before the conveyance to tlie
appellant, Martha Dittberner, she parted with no consideration
on account thereof, and she had full knowledge of the claims
of her brother, who was in occupancy of the premises. There
is tlierefore no fact or circumstance disclosed by the record to
raise in equity in her behalf. If at the death of her fatlier sliC
shall be entitled to compensation for his care and support dur-
ing tlie term of his residence with her, she may demand tlie
same from his estate, Avhich will apparently be considerable
in amount. In any case, the old gentleman is entitled to com-
fortable care and subsistence out of his estate or tlie avails of
it. nor is he ])ound to reside with his son, if he desires to abide
elsewhere, and it is not likely that even the testamentary agree-
ment might, under conceivable circumstances, be required to
yield so far as may be requisite for ministering to his necessi-
ties. But whether this be so or not, it is the ^''^ clear duty
of the court to protect the rights of the son by maintaining
618 American State Reports, Vol. 101. [Nebraska,
the present status, so far as possible, during the remainder
of the old man's life.
It is recommended that the former decision of this court be
overruled and set aside; and that the judgment of the district
court be so modified that the appellee, Carl Teske, be decreed
to be entitled upon giving a bond such as is tendered in his
petition, if one has not already been given, to retain the oc-i
cupancy of the premises in controversy during the lifetime of
his father, Frederick Teske, subject to the terms, conditions
and stipulations of the testamentary agreement set forth in
the report of the referee in this action; and that until the
death of said Frederick Teske the appellant. Martha Dittberner,
be adjudged to hold the legal title to said premises in trust,
for the satisfaction of the terms and conditions of said agree-
ment, free from any estate or interest of her husband, the
appellant, Frederick Dittberner, as tenant by the curtesy or
otherwise; and that she be perpetually restrained and enjoined
from conveying or encumbering the same except as herein di-
rected; and that upon the death of said Frederick Teske, and
full compliance with and performance of said agreement by
said Carl Teske, a conveyance of said premises to him be made
by said Martha Dittberner; and that the said decree, when so
modified, be affirmed.
Duflie, C, concurs.
Albert, C, not present at the hearing and took no part in the
dcci>ion.
By the COURT. For the reasons stated in the foregoing
opinion it is ordered that the former decision of this court be
overruled and set aside; and that tlie judgment of tlie district
court be so modified that the appellee, Carl Teske, l)e decreed
to be entitled upon giving a bond such as is tendered in his ])e-
tition, if one has not already been given, to retain the occu-
pancy of the premises in controversy during ilie lifetime of
his father, Frederick Teske, pubjec-t to tlie terms, conditions and
stii)ulations of the testamentary agreement set forth in the re-
port of the referee ^"^^ in this action; and that until tlie death
of said Frederick Teske tlie appellant, Martha Dittlierner, be
adjudged to hold tlie legal title to said premises in trust, for
the satisfaction of the terms and conditions of said agreement,
free from any estate or interest of her hus})and, the appellant,
Frederick Dittberner, as tenant by the curtesy or otherwise;
June, 1902.] Teske v. Dittberner. 619
and that she be perpetually restrained and enjoined from con-
veying or encumbering the same, except as herein directed;
and that upon the death of said Frederick Teske, and full com-
pliance with and performance of said agreement by Carl Teske,
a conveyance of said premises to him be made by said Martha
Dittberner; and that the said decree, so modified, be affirmed.
Judgment accordingly.
What Constitutes a Testamentary Writing is the subject of a mono-
graphic note to Farris v. Neville, 89 Am. St. Rep. 486-500. A refer-
ence to this note will show that the form of any instrument is of
little consequence in determining whether it is a will; if it is exe-
cuted with the formalities prescribed by statute, and is to operate
only after the death of the maker, it is a will: See, also, McCloskey
V. Tierney, 141 Cal. 101, 99 Am. St. Eep. 33, 74 Pac. e?99.
The Effect of Oral Agreements testamentary in character are con-
sidered in Orth v. Orth, 145 Ind. 184, 57 Am. St. Rep. 185, 22 N. E.
277, 44 N. E. 17, 32 L. R. A. 298; Morfen v. Moran, 104 Iowa, 216, 65
Am. St. Rep. 443, 73 N. W. 617, 39 L. R. A. 204; Simons v. Bedell,
122 Cal. 341, G8 Am. St. Rep. 35, 55 Pac. 3; Manning v. Pippen, 86
Ala. 357, 11 Am. St. Rep. 46, 5 South. 572; Dieken v. McKinlev, 163
111. 318, 54 Am. St. Rep. 471, 45 N. E. 134. And the right to recover
for services rendered under an oral contract to make a will is con-
sidered in Grant v. Grant, 63 Conn, 530, 38 Am. St. Rep. 379, 29 Atl.
15; Hudson v, Hudson, 87 Ga. 678, 27 Am. St. Rep. 270, 13 S. E. 583;
Ellis V. Cary, 74 Wis. 176, 17 Am. St. Rep. 125, 42 N. W. 252, 4 L.
R. A. 55; Estate of Kcssler, 87 Wis. 6(?0, 41 Am. St. Rep. 74, 59 N.
W. 129. A parol gift or conveyance of land will, under some circum-
stances, support a decree for specific performance: Canble v. Wor-
sham, 96 Tex. 86, 70 S. W. 737. 97 Am. St. Rep. 871, and casos cited
in the cross-reference note thereto; Grim v. England, 46 W, Va. 480,
76 Am. St. Rep. 826, 33 S. E. 251.
620 American State Eeports^ Vol. 101. [Nebraska,
COXSTERDINE v. MOORE.
[65 Neb. 291, 96 N. W. 1021.]
MORTGAGE — Effect of Transferring Note Secured. — A real
estate mortgage given to secure a negotiable note is a mere incident
to the debt, and passes with a transfer of the note. (p. 620.)
MORTGAGE and Note Should be Construed Together.— A note
and mortgage executed and delivered as one transaction will be con-
strued together; provisions in the mortgage relating to the indebted-
vess itself and attempting to modify the terms of the note will ho
construed with the note. (p. 621.)
MORTGAGE and Note Secured — Notice to Purchaser. — AVhen a
note and the mortgage securing it, together with an assignment of
the mortgage, are sold and delivered, the purchaser must take notice
of the provisions in the pipers, (p. 622.)
BLLLS AND NOTES. — Payment to the Original Payee of a
non-negotiable note, without notice of any transfer thereof, discharges
the paper, (p. 623.)
For a statement of the facts involved in this ease, see the
note which follows it, post, page G23.
Willis L. Hand, for the appellant.
Flansburg & Williams, for the respondent.
2«« SEDGWICK, J. After the decision of Garnctt v. Mey-
ers, Go Xeb. 2ri7, 94 X. W. 803, a rehearing was grarUed in this
case, and in others involving the same questions. Upon this
hearing the plaintilf's attorney has furnished us an able and
exhaustive argument upon the questions involved, which has
been of great assistance to us. Questions involving the nego-
tiability of notes secured by mortgages and other collaterals
l:ave frequently been considered by this court. As early a<
187G it wa.s determined in Webb v. IToselton, 4 Xcb. oOS, 19
Am. ]Jep. GoS, that "a bona fide purchaser, for value, of a
negotiable promissory note, secured by mortgage, before ma-
turity and *"*'' witliout notice, takes the mortgage as he does
the note, discharged of all equities which may exist between the
original parties,'' and also that ''the mortgage is a mere inci-
dent to the debt and passes with it." Tbese principles have
been since adhered to, and so it was said in tlie first ojiinion
of Garnctt v. Meyers: "The long established and general rule
is that if the note is in form negotiable, a sale and transfer
of the note transfers the mortgage." In Webb v. Hoselton, 4
Xeb. 308, 19 Am. Rep. G3S, the security was in the fonn of
Oct. 1903.] CONSTERDINE V. MoORE. 621
a deed of trust. Its sole object was to secure the payment of the
note. It does not appear to have contained any provisions af-
fecting or limiting the indebtedness itself, and the effect of
such provisions when incorporated in the mortgage or deed se-
curing the note was not considered.
2. That the note and mortgage, when executed and deliv-
ered together as one transaction, will be construed together, is
not a new doctrine in this state: Grand Island Savings etc.
Assn. V. Moore, 40 Neb. 686, 59 N. W. 115, and Seieroe v.
First Nat. Bank of Kearney, 50 N"eb. 612, 70 N". W. 220, were
cited as establishing the proposition as the doctrine of this
court. In the foraier case there is a somewhat extensive dis-
cussion of the question, and the conclusion is that the provision
in the mortgage that "if the mortgagors should fail to pay the
money when due .... the plaintiff might elect to pay the
same and declare the whole amount due and payable at once"
gave the holder of the papers the right upon such failure "to
elect to declare the whole deljt due, not only for the purpose
of foreclosing, but also for the purpose of enforcing the per-
sonal liability." The conclusion is fortified by the considera-
tion and discussion of authorities from this and other courts,
and is considered as settling the law of this state upon tliat
question. In the course of the opinion it is said : "The writer
was at first of the impression that where the note is absolute
and the mortgage contains such a provision, the provision should
be restricted to the remedy by foreclosure, rendering the debt
due for the purpose of foreclosure only, but leaving tlie ma-
turity of the debt for the purpose of enforcing the ^"** per-
sonal liability to be determined by tlie note itself. Tlie adju-
dications do not, however, bear out this view. In tliis state it
has been determined that in deciding such questions the note
and mortgage should be construed together: Fletcher v. Daugh-
erty, 13 Neb. 224, 13 N. W. 207; Lantry v. French, 33 Neb.
524, 50 N. W. 679. This principle alone would not be decisive
of the question, for tbe reason tliat, construing the two instru-
ments together, the fact that the stipulation referred to was
contained in the mortgage and not in tbe note, might be taken
as an evidence of tlie intention of the parties to restrict the
effect of tlie stipulation to the enforcement of the mortgage.
.... First Nat. Bank of Sturgis v. Peck, 8 Kan. 660, was a
suit upon notes under similar conditions. The court there
held, in an opinion by Brewer, J., tbat the notes and mort-
gage were to be construed together, that all tbe notes became
622 American State Kepoets, Vol. 101. [Nebraska,
due upon the failure to pay one, and that the statute of limita-
tions ran against all from that time." It may be said that
this opinion determines the law of this state to be that condi-
tions inserted in the contemporaneous mortgage which clearly
and necessarily relate to the indebtedness itself, and manifestly
constitute an attempt to modify or enlarge the terms of the
note will be construed with the note, and parties chargeable
with notice of such provisions will be bound thereby. This de-
cision, so far as the writer is aware, has not been criticised by
this court, but, on the other hand, has been followed as au-
thority, and it is not perceived that parties dealing with com-
mercial paper have cause to complain of such a rule. The rule
itself does not trench upon the sacredness of commercial paper
under the law merchant. The parties who attempt to make a
promissory note mean one thing to one person and another
thing to other persons; who want to hold the note out to the
world to be that which they have expressly agreed it shall not
be; who seek to set it afloat with a string attached whicli may or
may not be used to control the note as their interests may there-
after demand, are responsible for the uncertainty that attaches
to such securities. If doubtful, ^^^ conflicting, and uncer-
tain provisions in the contract result in rendering such papers
non-negotiable, the remedy is to limit the provisions of the
mortgage to their proper functions of securing tlie indebted-
ness, and define the terms of the indebtedness in the note which
is ,iriven for that purjiose: See. also, Seieroe v. First Xat. Bank
of Kearney, 50 Neb. G12, 70 X. W. 220; 1 Kandolpb on Com-
mercial Paper, 198.
3. Tlie note and mortgage, together with an assignment of
tlie mortgage, were sold and delivered to the plaintiff. It is
idle to argue that under such circumstances tlie plaintiff was
not bound to take notice of the provisions of the papers which
he purchased.
4. The provision of the mortgage whieli was lield to affect
the negotiability of the note is copied in full in the first opin-
ion in Garnett v. Meyers, G5 Xeb. 280, 91 X. W. 400. The
note and mortgage in this case were identical in their provi-
sions with the papers involved in Garnett v. Mcvers. Upon
tliis hearing it was strenuously contended, and is ably and ex-
haustively argued in the brief, tliat these provisions were not
intended to and did not affect the indebtedness itself, but relate
only to the security, and ought not, therefore, to render the
note non-negotiable.
Oct. 1903.] CONSTERDINE V. MOORB. 623
The question thus presented is not free from difficulty, but
we are inclined to adhere to the construction placed upon these
provisions upon the second hearing of Garnett v. Meyers, 65
Neb. 287, 94 N. W. 803. After fully providing for the pro-
tection of the securities, other conditions are inserted which
seem to have no meaning, unless they are construed to protect
the holder of the securities against taxes that may be imposed
upon these securities. If this is their meaning and intention,
there can be no doubt that such conditions render the amount
that the mortgagor may be compelled to pay upon the indebt-
edness, as a part thereof, uncertain; which would clearly ren-
der the paper non-negotiable. The papers being non-negotia-
ble, payment to the original payee without notice to the payor
of any transfer of the papers will discharge the paper.
The brief and argument of appellant are mostly employed
^**^ in the consideration of questions of fact as disclosed by
the evidence. But these considerations are unimportant in
view of the conclusion reached in the foregoing discussion
which requires a reversal of the judgment below.
The judgment heretofore rendered is vacated, the judgment
of the district court is reversed, and the cause remanded with
instructions to dismiss the case.
The Principal Case was first before the supreme court in 65 Neb.
291, 91 N. W. 399, on an appeal by the defendant from a decree fore-
closing a mortgage. The following is a part of the opinion rendered:
"The note and mortgage were executed by the defendant Thomas
E. Moore and wife to the Globe Investment Company. The defend-
ant, Bank of Miller, afterward bought the mortgaged property sub-
ject to the mortgage, and now defends in this case. Soon after the
rote and mortgage were executed and delivered the payee, the Globe
Investment Company, sold the papers to parties who afterward, and
before the note became due, sold and assigned them to the plaintiff
Afterward the defendant bank paid the mortgage note in full to the
original payee, the Globe Investment Company, but payment has not
been made to this plaintiff
"The appellant in his brief urges tliat the note was not negotiable
because of agreements contained in the mortgage that the maker
should pay insurance premiums and taxes on the mortgaged premises,
and that if the maker failed to pay in accordance with the terms of
the paper, the mortgagee or his assigns might declare the whole
debt due and payable at once, or might elect to pay the taxes and in-
surance, and even in such case might declare the whole debt due.
"The note and mortgage, having been executed at the same time,
and having been transferred together must be construed together,
G2i American State Reports, Vol. 101, [Nebraska,
and the provisions of the mortgage relating to the indebtedness it-
self would have the same effect as though they were incorporated iu
the note; but the provisions referred to relate only to the security,
•svhich is collateral to the indebtedness, and such provisions do not
affect the negotiability of the note. There is no agreement to pay
the taxes that might be assessed upon the indebtedness itself, nor
any other provision which would render the amount of the indebted-
ness or the time of the payment uncertain within the rule adopted
by this court. In Stark v. Olscn, 44 Nob. 646, 63 N. W. 37, it was
held that neither the provision to pay attorney's foe, nor that if de-
fault be made in the payment of any interest coupon, the principal sum
may at the option of the holder become due and payable without
further notice, would affect the negotiability of the note; and the
provisions of this note are within the same rule."
The Case of Gamett v. Meyers, 65 Neb. 280, 287, 91 N. W. 400, 94
N. W. 803, referred to in the principal case, was an appeal by the
plaintiff from a decree rendered in a suit to foreclose a mortgage
given to secure a note. On the original hearing of the case, the
supreme court said in part:
"It is insisted that the contract upon which this action w^as
brought is not negotiable, and that, as the mortgngor had no notice
of the assignment, payment to the original mortgagee is a satisfac-
tion of the claim. The note, otherwise in the usual form of a promis-
sory note, has the following memorandum upon its face: 'This note is
sceurod by a first mortgage on the N. W, Vi sec. 7, tp. 23, E. 6 west,
iSth P. M., Antelope county, Nebraska.' And the mortgage contains
among other things, the following provision: 'The said parties of
the first part hereby agree to pay all the taxes and assessments levied
upon the said premises and all taxes and assessments levied upon the
holder of this morlgnge for and on account of the same .... wlien
the same are rcspc.'tively due; and if not so paid, the said party of
the second part, or the legal holder or holders of said note may, with-
out further notice, declare the whole debt hereby secured due and
payable at once, or may elect to pay such taxes, assessments ....
and the amount so paid shall be secured by this mortgage and may
be collected in the same manner as the principal (b'ht hereby secured,
with interest at the rate of ten per cent per aruiuni. But whether
the legal holder or holders of said note elect to pay such taxes, as-
sessments .... or not, it is distinctly agreed that the legal holder
or holders of said note may declare the debt thereby secured due and
immediately cause this mortgage to be foreclosed.' ....
"The agreement to pay taxes on the lands mortgaged or to keep
up the improvements, or not permit or suffer waste thereon, or pro-
visions of like nature, contained in the mortgage, do not destroy the
negotiability of the note, because they do not relate to the principal
indel;tedness, and do not render the amount thereof uncertain. Such
provisions relate to the security, which is collateral to the principal
Oct, 1903.] CONSTERDINE V. MoORE. G25
indebtedness, and are proper provisions of the mortgage as such to
insure the maintenance of the security as originally given."
On a rehearing of the case, however, the court reached a different
conclusion. The following is the opinion rendered:
"In the former opinion in this case it was held that the provisions
there quoted from the note and mortgage did not destroy the nego-
tiability of the note. A rehearing was allowed mainly for the con-
sideration of that question. The oral arguments on this hearing were
largely devoted to two propositions:
"1. Should the conditions of the mortgage as distinguished from
those in the note itself be held to affect the negotiability of the
note? Upon this question we are entirely satisfied with the views
expressed in the former opinion. If the terms and conditions of
the mortgage are limited to the proper province of the mortgage —
that is, to provide security for the indebtedness — its provisions re-
lating solely to the security will not affect the negotiability of the
note. If the holder of the note is compelled to pay the taxes or
JTisurance on the mortgaged property to protect the security, and is
afterward allowed to recover the amount so paid in addition to the
principal indebtedness, this does not affect the amount of the in-
debtedness itself. The mortgagee has no interest in the mortgaged
property except a collateral and contingent one. The liability for
these expenses is upon the mortgagor. If he shirks this responsibility
and compels the mortgagee to assume it, equity allows the mortgagee
to add the payment so made to his mortgage. This right has long
been established as an essential element of the mortgage itself. It
cannot be held to destroy the negotiability of the note, unless the
fact that the execution of the note is accompanied by the
execution of a mortgage securing it is to have that effect.
This principal applies to all agreements of the mortgagor to
preserve the collateral security. It does not affect the rule that
the two instruments when executed at the same time must be con-
strued togf'tl:ei'. The pro\isioiis contained in tlie mortgage to protect
the securities, which would be implied and enforced upon settled prin-
ciples of equity, whetlier expressed in the mortgage or not, cannot be
held to render the note non-negotiable. As shown in the former
opinion, provisions as to the indebtedness itself should properly be,
and generally are, expressed in the note. If agreements in regard to
the indebtedness are inserted in the accompanying paper executed
at the same time with the note, and as a part of the same transaction,
they .)iust be construed with tlie note. If such agreements rendered
the amount tli;it the holder of the note can demand on the indebted-
ness itself uncertain, the note is non-negotiable in the hands of one
who takes it with notice. The reasonableness of this rule would
probably not be doulited in case the accompanying paper was not a
mortgage, but was executed for the sole purpose of modifying tlio
terms of the note, or to inal:e its payment depend upon coudi-
Am. St. Kep., Vol. 101—40
626 Amkiucan State Eepoktr. \ol. 101. [Nebraska,
tions expressed in tlio accompanying paper. Tlie reason seems to be
eqnally apparent when modifications of the terms of the note
or limitations imposed upon the collection of the indebtedness itself
are inserted in the accompanyin<T niort<:jage. Such provisions in the
morttrage are to bo construed with the note. If the contract, so con-
strued, renders the anuiunt that may be demanded upon the indebted-
ness itself uncertain, one who takes the note, with notice of the
limitations in the mortgage, is not entitled to protection as an inno-
cent holder.
"It is said by the plaintiff that there are two causes of action —
'one at law upon the bond, seeking personal liabilitv regardless of
the lien; tlie other a proceeding to enforce the security regardless
of the personal liability.' This is true, but in an action at law ujmn
tlie note, and without seeking to enforce the security, tlie plaint ilT
no doubt might allege that in a writing executed with the note, and
as a part of the same transaction, it was agreed that the maker
of the note should pay taxes that might be assessed against the holder
of the note by reason tliereof. and that sucli taxes were assessed and
had been ]iaid by the note i.older; anil there is no doubt that such
taxes so paid might, in such an act ion, he iiu'liuled in the recovery. If
snch recovery could be had when the ngreenuuits to ])ay such taxes
were in an acconijiauving jKijier executed for that ]>urpose aUuie, no
reason is perceived why recovery might not also be had in tlie same
I'.nnner if such agreements were contained in a umrtgiige executed at
the sai;;e time witli the note niul as a part of tlie same transaction.
'"2. Ihi the provisions of this mortgage relating to tlie indebted-
ness itself rentier the anuiunt that may be diMunuded thereon bv the
h(dder uncertain? Upon this ]u\iring we have been assisted by a
strong bri(>f and al 'e nrgiunent ui^ui this qnestion. We ([note from
tlie brief: 'It is s:iid in the botly of the ojiiiiion thnt the ]iro\ision
w;'.s ''phiiiily intended to meet tln^ eonditions wliicli (detain in siuue
jiirisdicticui, wluM-e the taxes ch:irg(>aMe ngiiinst lands are asscsstvl
■••gainst 1 'ith mortgagor and mortgagee in ]U-o]iort i(Ui to their several
e.'t itcs in the land.'' liy what ju'ocess of reasiuiing is this made so
jdainly to apjioar? The mortgagors had already imsilively agreed
in the followiiiir language: "The said ]iarlies of the llrst part hereby
agree to pay all taxes and assessments Im ied u|ion said ]>reinises'' —
meaning the re;il (>state covered by the mortgage. This pro\ision
seems to be as broad as laui^uage caa m:ike it. an I certainly would
be ciuistnied to cover any part of the taxes against t'u- real estate
that tlie lU'irtgagee might bei-ome liable for. ,\ll cannot b(> construed
to mean less than the whole. It wenM si^un, then, ti be the duty
of the co\irt to L'iv(> some meaning inid force to the further agree-
ment to ]>av all taxi's and assessnumts levi(>d ujion the Indder of
the morti^age for and tui acc(Uint of the same. It seems j)crt'ectly
]dain to the writer that the latter ]>rovisi(Ui was intended to covim-
the tax for which the holder of the mortgage would thereafter be-
Oct. 1903.] COXSTERDINE V. MOORE. 627
come liable on account of the ownership of the credit represented
ty the mortgage and note.'
"This reasoning seems to us to be sound. To construe the pro-
visions in question to mean that the mortgagor should pay all taxes
levied on the premises including taxes charged against the holder
of the mortgage on account of the mortgaged property, is not so
obvious and natural as to treat the word 'same' as relating to the
word 'mortgage.' as its near position in the sentence would indicate,
rather than to the more remote 'premises.' If the former meaning
were intended, the expression 'including all taxes levied,' etc..
would have been more apt than the expression used. Giving the ordi-
nary and natural menning to all the words use 1 in the provisions, it
seems to us. upon further consideration, that the intention was that
the mortgagor should not only pay thi? taxes assessed against the
mortgaged property, but also the taxes th'^t the mortgagee might
bcoome liable for as the owner of tho credit represented by the
paper. Such credits are taxable under the laws of this state, and
therefore presumably so in other jurisdictions. When levied they
are not a lien upon the mortgaged property, but are collectible from
the holder of the credit as any other personal taxes. The amount,
then, that may be demanded upon the note would depend upon uncer-
tain conditions 'that cannot be controlled by the holler of the paper,'
and as pointed out in the former opinion, would destroy the negotia-
bility of the p:ipor. Tho note not being negotiable th-.^ plaintiff,
who purchased and took the mortgage with the note, must be held to
have had notice of its conditions, and is not an innocent purchaser,
nder such circumstances, payment to the original payee by tlie mort-
gagor, who had no notice of the transfer of the papers, would satisfy
the mortgage.
"The former judgment of this court is vacated and the judgment of
the district court allirmed."
.1 }for1'ja;iv and the X'lfr soinired. executed at the same time and
as one transaction, are to be construed to^et'aer: Swi^a''in<:"on v.
Lahner. 93 Iowa. 147. 57 Am. St. Kep. Col. (U X. W. -i31. 'Jo !,. R.
A. 765: Schultz v. Plankintou Bank. 141 111. lUT. 33 Am. St. Eop.
290. 30 X. E. 34(3.
.4. M(yrf(]anr and the Xt'tif secured are neiTotiaMo: Cox v. Tayan.
117 Mich. 509. 72 Am. St. Eep. 5>^5. 7o X. W. 9il See. to,^ Valley
Xat. Bank v. Crowell. 14S Pa. Sr. 4S4. 33 Am. St. Eep. S24. 23 Atl.
106S, IG I.. E. -\. 49: .Vlberston v. Laughlin. 173 Pa. St. 525, 51 Am.
St. Eep. 777. 34 Atl. 2Ui.
C28 American State Eeports^ Vol. 101. [Nebraska,
CITY OF GENEVA v. BUPiNETT.
[G5 Neb. 464, 91 N. W. 275.]
NEGLIGENCE— Petition Omitting the Word "Negligence."—
If, in au action for personal injuries, tlio inference of negligence is
inevitable from the facts narrated in the petition, the omission of
the word "negligence" in the pleading does not render it defective.
(p. 628.)
EVIDENCE. — X-Eay Pictures are Admissible in evidence, in
an action for personal injuries, to show the condition of the interior
tissues of the injured member, (p, 629.)
J. D. Hamilton and Charles II. Sloan, for the plaintiff in error.
Eobert J. Sloan, for the defendant in error.
^^■* AMES, C. The defendant in error, plaintiff below, al-
leged in her petition that on the twelfth day of December, 1898,
she suH'ered personal injury from a loose board forming part
of the structure of one of the sidewalks in the city of Geneva,
and "that said board was lying loose across the stringers in
said sidewalk, not being nailed to any of them. And that said
board was loose and that said sidewalk was in ^^'^' bad condi-
tion and repair, was well known to the mayor and council of
said city and to the olbcers whose duties it was to re])air and
oversee the same. And that for a lo2ig tin^e previous to the
twelfth day of December, 1898, and ever since said date the an-
tlioritics above mentioned allowed said sidewalk to be and re-
main in a dangerous condition." A general demurrer was
interjiosrd to this jjetition, su])])orted by the argument that it
does not sullieiently allege that the city autliorilies were negli-
gent witli respect to tlie matter complained of. The demuri'er
was ])roperly overruled. If the circumstances were such as tlie
l)eiition narrates, the inference of negligence is inevitable. The
ii?o of tlie word ''negligence'' would not have made the charge
any more specific or emphatic. Its omission from the plead-
ing, therefore, did not render the document defective. The an-
swer denied "tiiat the said walk was unsafe and daugerous, or
tliat it bad any notice of such defect in the walk and that the
defect, if any. wliicli caused the injury was latent and unknown
to it, iiltlioiiL:ii it bad u^ed diligence in the ])roinises." This
is an admission of the defect charged, coupled with a denial of
notice and negligcnc(>. ]t is like a denial that a note is gen-
\iine, coupled with an allegation tliat, if genuine, it was ob-
July, 1902.] City of Geneva v. Burnett. 629
tained by fraud. A party cannot deny and confess and avoid
the same cause of action in the same pleading: Dinsmore v.
Stimbert, 12 Xeb. 433, 11 X. W. 872. The answer also alleged
that if the plaintiff had suffered any injury it was incurred
by her own carelessness, without the fault or negligence of the
defendant. The reply was a general denial. The evidence
concerning all matters in issue was conflicting. The plaintiff
recovered a verdict and judgment, which the defendant seeks
to set aside by this proceeding.
The plaintiff testified that her foot and ankle, which were in-
jured by the accident, were previously thereto in a sound and
healthy condition, and that the injury had produced a perma-
nent, or at least prolonged disability. Some medical men tes-
tified that one of the consequences ***^** of the injury was, or
might probably be, a calcareous deposit in the tissues of the
foot, and that they had examined the foot of the plaintiff, who
was a young person, by means of an apparatus for making or
taking what are called "X-ray pictures"' of it, which disclosed
the presence of such a deposit, and that, in their opinion, the
deposit was the result of the injury. Plaintiff in error objects
because some of the pictures so obtained were admitted in evi-
dence. There was a very thorough and complete explanation
of the time, manner and circumstances of the takino; of the
pictures, and of the condition of the foot which they were sup-
posed to indicate; but it is insisted that they were secondary
evidence, and so not admissible. From the testimony of the
witnesses, we are convinced that no better evidence of the con-
dition of the interior tissues of the foot could have been ob-
tained, without a surgical operation, to which the plaintiff
was not called upon to submit. \Ye do not think that the rul-
ing complained of was erroneous.
Complaint is also made of the refusal by tlie court to give
certain instructions requested by the plaintiff in error, but w-e
think they are all of them substantially embodied in a series
of instructions given by tlie court of its own motion, which
ffiirly stated the law, and submitted the issues to the jury.
The verdict and judgment are moderate in amount, and we
recommend that they be affirmed.
Duffie and Albert, CC, concur.
By the COUllT. For reasons stated in the foresroinfr opin-
ion, it is ordered that the verdict and judgment of the district
court be affirmed.
630 American State Eepokts, Vol. 101. [Nebraska.
That X-Raij Pictures are admissible in evidence in actions for
personal injuries, see the monocjraphic note to Baustian v. Young,
75 Am. St. Eep. 474; De Forjje v. New York etc. K. E. Co., 178 Mass.
59, 86 Am. St. Eep. 464, 5t> N. E. 669.
SHELBY v. CKEIGIITON.
[6'o Neb. 485, 91 N. W. 361).]
JUDGMENT — Estoppel Extends to Premises. — Tf a judgment
is necessarily drawn from certain preniisos, tliey are as couelusive
as the judgment itself, (p. 6.'55.)
TRUSTS.— A Purchase of Trust Pioperty of the Trustee is
not necessarily void; the cestui que trust has a right to afhrm the
sale, and an aflirmance will be implied froui an uui'casouable delay
in making an election, (p. 636.)
WHERE AN ADMINISTRATOR Purchases Part of His De-
cedent's Property, a final order approving his accounts and ilis-
charging him is conclusive on all parties of every matter iu\()l\cd,
including the validity of the sale. (p. 6o7.)
JUDGMENT — Vacation for Fraud and Impositiou. — A suit in
equity to set aside a decree for fraud jiud inijiositiou cannot be main-
tained where the evidence fails to show tli«t the plaintiff -was not
as fully cognizant of the manner in which the decree was obtained
at the time of its entry as slie was when the suit for relief was
commenced, (p. 638.)
ADMINISTRATOR'S SALE -Laches. The Eight to Question
the validity of a sale of a d(>i'edent's property, on tli.' ground that
the administrator purchased thereat, uiav be barred by laches, (p.
638.)
AVilliani D. Beckett an:! J. W. Woo:! rough, for tlie plaintilT in
error.
Jani(>s W. Woolwortli and William 1). Mellugh, for the de-
fern hint in eri'or.
4««* ALl'.i-:irr. C. On the nrih dav of Xoveml.er. 1^71,
Edward Creighton died intestate at Omaha, leaving a large
<'>tate, eoiisistiiig of hoth real and |'e!>onal proj)(M't\". lie
left no is>tie. and liis ])ersonal estate tiescetidud to his wife,
wliom wi' slaill liercafter refer to as Mrs. ('rrigliton. On
the tu<e;ticth (hty of ^rai-eli, IS"."), the d(>fen.hint Avas a])-
pointud administrator of tlie estate of the iidestate hy tlie
eountv court of ])()iiglas county. At the time of his death
tlie intestate was a niemher of the firm of E. Creigldon Sz
Co.. which owticd n herd of cattle ranging in Xehraska and
"Wyoming, and in the possession of T. A. McShano. In
July, 1902. J Shelby v. Ceeighton. 631
January, 1875, Charles liutton. was appointed aclministoa-
tor of the estate of the intestate in Wyoming by the probate
court of **'' Albany county. Under the laws of that territory
in force at that time the administrator was required to include
the whole of the partnership property in his inventory, ap-
praised at its true value, carrying out in the footings an amount
equal to the intestate's interest therein. A surviving partner
was then permitted to retain possession of such property upon
giving the bond required by law, and to close the partnership
affairs. He was required to account to the probate court after
the manner of an administrator. In pursuance of these pro-
visions, on the twenty-fourth day of July, 1875, T. A. Mc-
Shane, having made a showing to the effect that he was a sur-
viving partner of the intestate in said firm, gave the statutory
bond, and from that time until 1877, administered on the part-
nership estate. On the twenty-third day of January, 1876,
Mrs. Creighton died, leaving a will, whereby she bequeathed a
specific sum and intei'est in the residuum of her estate to her
executors, to be licld and invested by them, the interest
thereon to be paid to Joseph Creighton, during his lifetime,
and thereafter to his children until the youngest surviving
him shoLild Imve attained its majority, when the principal
sum should be divided and distributed among thera. Her-
man Kountze, James Creighton and the defendant were named
in the will as executors. The will was admitted to probate
in tlie county court of Douglas county, and the executors named
therein duly qualified and acted as such until the f.ral settle-
ment of tlie estate, except James Creighton, who resigned be-
fore the estate was closed. On the sixteenth day of January.
1877, the proljate court of xVlbany county made an order di-
recting the surviving partner, administering the firm properly
as aforesaid, to dispose of the cattle at public auction on the
twenty-firth day of January, 1877. Hi pursuance of this
order, tlie surviving ])artiier oU'ercd tlie pro])ertv for sale at
the place and in the manner directed l)y said order, and sold
it to the defenfhint. On the twenty-seventh day of January
thereafter lie made report of the sale to the court directing
same, which was duly approved and confirmed; and '^^'^'^ on
tlie same day he was appointed administrator de bonis non of
the estate of the intestate in Wyoming, the letters granted to
Charles Hutton having been revoked. On tlie sixth dav of
starch. 1877, his final account as surviving partner was ap-
proved by the probate court, and the amount therebv shown to
633
American State Reports, Vol. 101. [Nebraska,
be due the estate, in pursuance of an order of tliat court, passed
from his hands as such partner, to him as administrator of the
estate, and, subsequently, to the defendant as administrator of
the domicile. The defendant as administrator of the domicile,
having received the money, acting under an order of the county
court of Douglas county, paid the same to the executors of the
will of Mrs. Creighton, who distributed it with the other as-
sets of the estate, in accordance with the terms of the will.
On the twelfth day of March, 1883, the final account of the
defendant as administrator of the estate of Edward Creighton
was approved, and on the fourteenth day of March thereafter,
he was discharged from his trust. On the sixteenth day of
October, 1893, Joseph Creighton died, leaving the plaintiff,
his only child, surviving him. On the eleventh day of Xovem-
ber, 1893, ITcrman Kountzo, and the defendant herein deliv-
ered to plaintiff in. this case certain bonds and notes, and paid
her a sum of money, which she acknowledged to be in full
satisfaction and discharge of all liabilities due her as daughter
and heir of Joseph Creighton, as well as of all liabilities due
her in the estate of Edward Creighton, deceased, under the
will of Mi's. Creighton. By writing under her hand of that
date she released and discharged the defendant and Herman
Kountze, as executors of the will of INlrs. Creighton and as
trustees of the fund hereinbefore mentioned. The other execu-
tor had resigned before that time. On tlie fifteenth day of
February, 1894, some question having arisen as to the regular-
ity of the sale of the cattle in Wyoming to tlie defendant,
Herman Kountzo, and the defendant commenced an action
in tlie district court for Douglas county against the plaintiff
in this case and her husband, praying that an account miglit be
taken of their dealings and transat'tions ^*^'* in res])ect to their
said trust, and asking that tlie accounting between tlu;m and
the defendant be ratified and confirmed and they be discharged
from all liability on account of the said trust. The defendants
in the cause just referred to made default and a decree was ren-
dered in accordance with the prayer of tlie petition. From tlie
foregoing it will be seen that the sale of tlie cattle of the firm
of E. Creighton & Co. to the defendant by T. A. ^IcShane, as
a surviving partner of the intestate, was in pursuance of an
order of the probate court of Albany county, Wyoming, from
which letters of administration on the estate of the intestate
in that jurisdiction had issued and that at the time of such
sale the defendant was administrator of the estate of the intes-
July, 1902.] Shelby v. Ceeighton. 633
tate in Xebraska, and one of the executors and trustees under
the will of Mrs. Creighton, to whom the whole of the personal
estate of her husband, the intestate, had descended.
This action was brought and prosecuted on the theory that
the sale of the cattle to the defendant was invalid and inop-
erative to change his trust relations to the property, because
T. A. McShane was not in fact a surviving partner of the in-
testate in said firm, and, because of defendant's trust, he could
not become a purchaser of the trust property in his own be-
half. The plaintiff, therefore, as one of those in whose favor
the trust was created by the terms of the will of Mrs. Creigh-
ton, asks, among other things, that the defendant be required to
account for her share of all the said cattle, and the proceeds
and profits arising therefrom.
The defense was cenducted on the following lines: 1. That
the order of the probate court of Albany county, Wyoming,
whereby T. A. McShane was permitted to administer on the
partnership estate and to wind up its affairs as surviving part-
ner, is conclusive in this case on the question of his relation
to said firm; 2. That his relations to the estate in Nebraska
did not render him incompetent to purchase at a sale of its
property in another jurisdiction by another administrator; 3.
That by the ^^^ orders of the probate courts, and the decree of
the district court, the plaintiff is estopped to question the va-
lidity of the sale; 4. Tliat the plaintiff is bound by her settle-
ment with the defendant and his cotrustees; 5. That the plain-
tiff has been guilty of ladies in the premises; 6. That the ac-
tion is barred by the statute of limitations. The trial court
found for the defendant, and decreed accordingly. The plain-
tiff brings the case here on error.
On the question whether T. A. McSliano was a member of
the firm of E. Creighton & Co., in our opinion, the plaintiff is
concluded by the proceedings had in the probate court of Wy-
oming. Chapter 47 of tlie Compiled Laws of Wyoming of 1S7G
relates to the settlement of the estates of decedents, and was in
force when such proceedings were had. Five sections of that
chapter are as follows:
"See. 45. The executor or administrator on the estate of
any deceased memljcr of a copartnership shall include in the
inventory, which he is required by law to return to the probate
court, the whole of the partnership estate, goods and chattels,
rights and credits, appraised at its true value, as in other cases,
but the appraisers shall carry out the footing an amount equal
634 A:^iKRiCAN State Reports, Vol. 101. [Nebraska,
only to the deceased's proportional part of the copartnership
interest.
"Sec. 46. Tlie property thus appraised shall remain with
the executor or administrator, or be delivered over, as the case
may be, to the surviving partner, who may be disposed to un-
dertake the management thereof, agreeably to the conditions
of al)ond. wliieh he shall be ro(|uired to give to the territory
of Wyoming, in such sum, and with such securities as is re-
quired in other cases of administration.
''Sec. 47. The condition of such l)ond sliall l)e, in substance,
as follows: 'The condition of the above Ijond is, that if A B,
surviving partner of the late firm of , shall use due dili-
gence and fidelity in closing the affairs of the late copartner-
ship, apply the property thereof toward the payment of the
partnership debts, render an account, upon oath to the probate
court, wlienever by it ■*•'' thereunto required, of all*the part-
nership affairs, including the property owned by the late firm,
and the debts due thereto, as well as what may have been paid
bv the survivor toward the partnership debts, and wliat may
still be due and owing theiefor, and ])ay over, within one year,
unless a long(>r time be allowed by the probate court, to the
executor or administrator, the excess, if there be [anyl be-
yond satisfying the partnership debts, then the above bond to
be void, otherwise to remain in full force.'
"Sec. 48. The ])robate court sliall have the same autlioi'ity
to cite such survivor to account, and to adjudicate upon such
account, as in case of an ordinary administi'ator. and the par-
ties intei-csted shall have tbo like remedies, by means of such
hoiul, for any misconduct or neglect of such survive;:-, as nuiy
be had against administrators.
"Sec. 11). In case tbe survivin<r partner, having been dulv
cited for tbat ])ur])ose, shall neglect or refuse to give tbe bond
re(|uire(l in tlie foi-ty-sixth and forty-seventh sections of tbis
title, tbe exceutor or administrator on tbe estate of such de-
ceased partner, in giving a bond, as })rovided in tbe following
seelions, shall ff)rtbwitli take tbe whole pai'tnei'sliip estate,
poods and chattels, rights and credits, into bis own jjossession,
and sliall be authorized to use tbe name of the survivor in
collecting tlie debts due tbe late firm, if necessary; and shall
with the partnersliip property Jiay tbe debts due from the late
firm, with as much expedition as ])os>il)le. and return or pav
to the surviving partner bis proportion of the excess, if there
be any."
July, 1902.] Shelby v. Creighton. 635
From the foregoing it appears that the probate courts of
tliat territory, in addition to the jurisdiction ordinarily exer-
cised by such courts in probate matters, had jurisdiction to
adjust the account between a surviving partner and the estate
of his deceased copartner, and to supervise the winding up of
the partnership affairs. To that end, a surviving partner,
upon compliance with the provisions of sections 4G and 47,
supra, was permitted to administer on the partnership estate
and was held to accoimt after the manner of an administrator.
Wliile the cattle in "*'^^ question sometimes crossed the Xe-
braska line, it sufficiently appears that such instances were rare
and accidental, and that their real situs was in "Wyoming, and
within the jurisdiction of the probate court which granted ad-
ministration on the estate in that territory. Administration
was granted on an application made in due form, and after
service of process according to law. T. A. McSliane, who was
in possession of the cattle, claiming the right of possession as
surviving partner of the intestate, was also within tlic jurisdic-
tion of that court. The jurisdiction of the probate court in
tlie premises was therefore complete, not only for tlie ordinary
purposes of administration, but also for the purpose of adjust-
ing tlie accounts of the said firm, and supervising the winding
up of its affairs. After the jurisdiction of the pro1)ate court
was com})lete and administration had Ijcen granted on the es-
tate, T. A. ^IcShane, made a showing to tbe court that the
property in question was the pro])erty of the firm of E. Creigh-
ton & Co.; that he was a surviving partner of tlie intestate in
such firm, and as such, made application to administer the
firm ])roperty, in accordance with the provisions of the statute
liereinljeiore quoted. iTis ap})lication was granted. Suljse-
quently, his final account of his administration as survi\ing
jnirtner was settled and allowed by the probate court, and lie
was discharged from his said trust. The decree of the jiro-
bate court of Albany county, Wyoming, settling and allowing
the account of T. A. ^McShane as surviving ])artiior, is anal-
ogous to a decree settling and allowijig the final account of
an administrator. Such decrees are conclusive, upon all par-
ties, of every matter involved, until reversed or set aside in a
direct proceeding*.. 1 Herman on Estoppel, p. 392; 2 Black
on Judgments, sec. Gl-4. An estoppel by judgment or decree
extends to all matters upon which it must have been founded.
In other words, the judgment is a conclusion, and. if neces-
sarily drawn from certain premises, such premises are conclu-
G3G American State Reports, Vol. 101. [Nebraska,
sivG as the judgment itself: Burlen v. Shannon, 99 Mass. 200,
96 Am. Dec. 733; Perkins v. Walker, 19 Vt. 144; 4»-'* Hayes
V. Shattuck, 21 Cal. 51; Tuska v. O'Brien, G8 N. Y. 41G. The
decree settling and allowing the final account of T. A. IMcShanc
as surviving partner, while a part of the probate proceedings,
was in elTect an adjustment of partnership accounts, and nec-
essarily involved the question of his relation to the firm. That
he was a member of such firm is a proposition necessarily in-
volved in the decree. In our opinion, the decree is as conclu-
sive upon that proposition as one adjusting the accounts be-
tween partners, entered by a court of equity, in a suit between
partners brought for that purpose would be.
It is next urged by the plaintiff that the defendant, by rea-
son of his trust relations to the property, was not competent
to purchase^ and consequently that the sale to him was void.
The argument on this point proceeds on the assumption that
a purchase by a trustee of trust property is void at all times
and under all circumstances. Loose expressions of some courts
and text-writers would appear to warrant that assumption, but
the weight of autliority is against it: Hammond v. Hopkins,
143 U. S. 224, 12 Sup.*^Ct. Rep. 418, 3G L. ed. 134; Van Dyke
V. Johns, 1 Del. Ch. 93, 12 Am. Dec. 76; Litchfield v. Cud-
worth, 15 Pick. (Mass.) 23; Munn v. Burges, 70 111. 601;
Boyd V. Blankman, 29 Cal. 19, 87 Am. Dec. 146; ilusselnian
V. Eshleman, 10 Pa. St. 39 1, 51 Am. Dec. 493; Foxwortli v.
White, 72 Ala. 224; In re Patterson (X. J.), 20 All. 4SG; Mor-
gan V. Fislier, 82 Va. 417. The rule ajipears to l)e that, on
tlie purchase of property by a trustee, tlie cestui que trust has
tlie option to take the benefit of such purchase, or to treat the
sale as valid, but his decision must be made within a reasonable
time. An affirmance of the sale will be implied from an un-
rensonal)le delay. In addition to the foregoing cases, see Wis-
wall V. Stewart, 32 Ala. 433, 70 Am. Dec. 549; Davouc v. Fan-
ning. 2 Jolins. Ch. (X. Y.) 252; Jackson v. Walsh, 14 Johns.
(X.' Y.) 407; Follansbc v. Kilbreth, 17 111. 522, G5 Am. Dec.
GOl. Assuming, then, that the defendant stood in the rela-
tion of trustee to the jirojierty in question — a point we do not
decide — still the sale to him, at most, was voidable, and one
which the plaintiff, or others bearing the relation of cestui que
trust ^""* to the property had the unquestionable riglit to af-
firm. The final accounts of the defendant as administrator of
the estate of Edward Crcighlon were approved and allowed by
the county court of Douglas county in 1883, and the adminis-
July, 1902.J Shelby v. Ceeighton. Oo7
trator discharged. Before that time it was a matter of record
in that court that he was the purchaser at the sale of the prop-
erty in question. The proceeds were accounted for by him,
and distributed as part of the assets of the estate, under an
order of the court. Mrs. Creighton was sole heir to the personal
estate. Her interest therein, and the amount thereof she would
have received, had she lived, would have been measured by the
decree of distribution, based on the approved accounts of the
administrator. On her death, her interest passed to her execu-
tors, but would still be measured by the same standard. The
plaintiff claims under the will of Mrs. Creighton, and of ne-
cessity, her claim must be for a share of the interest thus ascer-
tained. In other words, in the absence of special circum-
stances which do not appear in this case, the decree of the
county court is as binding on the plaintiff as it would have been
on Mrs. Creighton, had she lived. The jurisdiction of the
county court of Douglas county over the estate of Edward
Creighton is unquestioned. Due notice of the time and place
of the hearins: on the final settlement of the administrator was
given. Personal service of such notice was had on the plain-
tiff in this case. No objection was lodged by her against tlie
accounts of the administrator, nor was any complaint made
by her of the sale in question. She was under no disability.
The final decree of the county court in the premises has never
been reversed, vacated or set aside. Such decree necessarily in-
volves an approval of the accounts of the administrator, and as
such accounts included the proceeds of the sale of tlie prop-
erty in lieu of the property itself, and were approved by tlie
court with full knowledge of the fact tliat the sale had been
made to the defendant, the approval of sucli accounts v.as an
approval and affirmance of such sale. Such a decree is con-
clusive on all parties to it, of every '*''^ matter involved, and
constitues a bar to further proceedings concerning the same
matter, not only in courts of probate jurisdiction, but in all
other courts: Ilartman's Appeal, 36 Pa. St. 70; Baker v,
Eunkle, 41 Mo. 391, 392; Bulkley v. Andrews, 39 Cojin. 523,
524; McWilliams v. Kalbach, 55 Iowa, 110, 7 X. W. 163 •,
Waring v. Lewis, 53 Ala. 615. Acquiescence in snch decree
by the plaintiff must be held to amount to an eleclion on her
part to alfirni the sale. In our opinion, the jjlaintill' is roii-
cluded, on the question of the validity of the sale to the defend-
ant, by the final decree in the matter of the estate of J^dward
Creig-hton.
G38
American State Eepoets, Vol. 101. [Nebraska,
But it is insisted on behalf of the plaintiff that such decree
was obtained by fraud and imposition. Were that conceded,
still tlic decree would not be void, but binding until set aside in
a proper proceeding: Christmas v. Eussell, 5 Wall. 21)0, 18 L.
cd. 475; McRae v. Mattoon, 13 Pick. (:\Iass.) 53; Smith v.
Smith, 22 Iowa, 51G. If it be urged that a part of tlie relief
sought in this action is to set aside that decree the answer is that
the evidence fails to show that the plaintiff was not as fully
cognizant of the manner in which the decree was obtained at
tlie time it was entered, as she was wlien this .suit was com-
menced. Therefore, she has not shown herself entitled to such
relief, and the decree stands a bar to her recovery in this ac-
tion. The foregoing, we tliink, disposes of this case. It may
not be out of place to add that the sale took place more than
twenty-five years ago. It stood uncliallenged by the plaintiff
for more than twentv years. For fifteen years of tliat time the
fact of the sale and tliat it liad been made to the defendant was,
as we have seen, a matter of record, in a proceeding to which
the plaintiff was a party, and of which slie had notice by per-
sonal service of process. The sale was before the prol)ate court
in Wyoming, in 1877. It was before the county court of Doug-
las county in tlie settlement of the estate of Edward Creigliton
in 1SS3. It Avas, at least incidentally, before tlie same court
in tlie matter of the est;'.t(^ of Mrs. C'roightoii. IMaintilf's at-
tention, in the nature of things, must have l)een invited ^'*''' to
it in her petthMiient with the defendant and his cotni-tee in
1S1*3. Investigation was again invited bv t'le action brought
bv the defendant and his cotrustee in the district court of Doug-
las coiintv in IS!)} against the plaintill' for the re-e.\;;iuiiiaiion
and approval of their accounts as ti'Uf-lees under tlie will of
Mrs. Creigliton, in wl;i<-li. acting on the advice of counsel, the
I'laintilf in this case, suil'ered dcd'ault. Her first complaint of
the Side a!i])e<!rs to have made in IHOS when this action was
coiniiieiiced. It is not shown that she was under any disahil-
itv during an\- poi-tion cd' this time. She was not examined as
a witne>s in this case. In \iew of the circumstances, ignorance
of the i'i\ri< during all these vears can not be imputed to her.
AMiile we have ])ut the de(-ision on other grounds, it st'cms to us
that, in the light of all the facts, the linding of the district
court that the plaintilV's cause of action is barred by her own
laches, as well as by the statute of limitations^ is amplv war-
ranted.
July, 1902.] Harrison Xatioxal Bank v. Austin. 639
It is recommended that the decree of the district court be af-
firmed.
Duffie and Ames, CO., conciir.
By the COUET. For the reasons stated in the foregoing
opinion, the decree of the district court is affirmed.
The Purchase of trust property by the trustee is not necessarily or
absolutely void: See the monop^raphic note to Tyler v. Herring, 19
Am. St. Rep. 289. See, also, Sacramento Bank v. Copsev, 133 Cal.
663, 85 Am. St. Rep. 242, 60 Pae. 8, 205; Gilbert v. Hewetson, 79
Minn. 326, 79 Am. St. Rep. 486', 82 N. W. 655. And a purchase by
an executor or administrator of the estate of the decedent is merely
voidable: Melms v. Pabst Brewing Co., 93 Wis. 153, 57 Am. St. Rep.
899, 66 N. W. 518. See, also, Houston v. Bryan, 78 Ga. 181, 6 Am.
St. Rep. 252, 1 S. E. 252; Comegy v. Emerick, l-Hl Tnd. 148, 39 Am. St.
Rep. 245, 33 N. E. 899; Linman v. Riggins, 40 La. Ann. 761, 8 Am.
St. Rep. 549, 5 South. 49.
IIAEEISOX XATIOXAL BAXK v. AUSTIN.
[65 Neb. 632, 91 N. W. 540.]
AGENT, PAYniENT TO— Evidence of the Indebtedness.—
That a person to whom money due another is paid is not in possession
of the instrument by which the indei)tedness is evidenced, is not
conclusive of his authority, or lack of it, to collect the money, (p.
643.)
AGENT, PAYMENT TO— Estoppel of Principal.— Where a
principal has placed his agent in such a position with reference to
a note and mortgage that a person of ordinary prudence, conversant
with business usages, is justified in presuming him authorized to
collect the amount due, payment to him discharges the obligation,
(p. 6,44.)
AGENT, AUTHORITY OF, Inferred from Other Transac-
tions.— The authority of an agent to do a particular act in cou-
nection with a transaction may be inferred from proof that his
principal authorized or ratified similar acts in connection with past
transactions intrusted to him under similar circumstances, (p. 644.)
Abbott, Selleck & Lane and Juhn S. Bisliop^ for the ap]icl-
lant.
Charles G. Evan, Charles W. Meeker and William O'Connor,
for the respondent.
633 IvTEKPATETCK, C. Tbis is a suit brou,irbt in the dis-
trict court for Chase county by appellant, Harrison Xational
Bank, against Cyrus 0. Austin and others to foreclose a mort-
G40 American State Eeports^ Vol. 101. [Nebraska,
gage given by Austin to C. C. Burr on May 31 1890, due June
1, 1895, which note and mortgage was by Burr indorsed, as-
signed and delivered to appellant long before maturity. The
petition is in the usual form. The answer admits the execu-
tion and delivery of the note and mortgage, and pleads pay-
ment of tlie sum by Edward Kuse, who purchased the premises
subject to the mortgage to Burr, who, it is alleged, was the
agent of appellant bank, and that such money had been paid
by Burr to the bank. To this answer was tiled by way of re-
ply a general denial. Trial was had, which resulted in a find-
ing and judgment for appellee Kuse, holding that the note
and mortgage had been satisfied by tlie payment to Burr, and
decreeing the mortgage to be no lien upon the premises. The
case is brought to tliis court on appeal by the Harrison National
Bank, and the only question **-''^ presented by tlie record is
whether or not the decree of the trial court is sustained by suHi-
cient competent evidence.
It is disclosed by the record that appellee Kuse paid to C. C.
Burr, on tlie se\entli day of January, 1893, long before the note
was due, the face of the note and mortgage, witli interest ac-
crued up to that time. ]5urr exet-iited a release in satisfaction
of the mortgage, whicli he delivered to a])|HdIee. who iilaced
it of record in Chase county. It is clearly established l)y the
evidence that C. C. Burr was the agent for appcdlant in the
matter of ne.|()tia(in<x f;\r\n loans in Nehrask"a. and that dur-
ing llie time he acted as such agent, he placed farm loans u\)on
l;:nd in various counties in the state to a sum aniounliua' to
about two lunidi'od and tirt\- thou-and dollars. 'J'lie method
which seems to have pi-evailed in tlie transaction of tlie husi-
ness ht^twcen lUirr and npnellant was as fi'l!o\vs: Appellant,
bv J. M. Shai'on. it> cashier, would write a leiier to IJuri'. di-
recting him to send them a certain auiount of farm loans; e. g.,
from thi'ee to ten thousand dollars" worth. Aiieiits for l^urr in
dilTerent counties in the state, on heinof notifI(^d to do so. v.nuld
take apj)lications for farm loans, and send them to liurr at
Lincoln. Sncji as were saiisfaetory to him were accejited. anil
ho would thereupon ])repar<' notes and niorti:a,i:es to he sent to
the ai;ciit to he signed and executt'il by thc> hon-owei's. I'lie
mort'j-aLro, when excrutcd. wouhl he ]daced of record, abstracts
]u-opared, and the note and mortiragc^ of the borrower, and the
abstract showiiprr tlie recording of the niortga;:e would be for-
Avarded to I'urr. who would send the papers, accompanied bv
a si::ht draft, through the l^r.-rt National I'ank at Lincoln to
July, 1902.] Harrison National Bank v. Austin. 641
appellant at Cadiz, Ohio. The testimony shows that so far as
the business agency of Burr with appellant is concerned, the
former did not take these applications for loans and make the
loans thereon except upon orders coming to him from appel-
lant. All of the business was transacted by Burr, and while,
as appears from the letters written by the officers of appellant
bank, Burr was admonished to take only good, first-class farm
^^® loans, yet it does not appear that in any instance loans
sent in by him in pursuance to such orders were rejected by
appellant. Burr indorsed the notes, and usually assigned the
mortgages. The notes were payable at the First National Bank
of Lincoln, Nebraska. It is contended by appellant that it
purchased these notes and mortgages in the usual course of
business, and that Burr was not in any sense acting as its agent
in placing the loans. The transactions between the parties re-
garding the placing of loans will not bear the construction
placed on their relations contended for by appellant. It does
not appear that Burr had any money invested in any of the
loans; but that uniformly, after drawing a sight draft on ap-
pellant bank, would give his check to the party to whom the
money was loaned. There can be no doubt that Burr was sim-
ply acting as the agent of appellant in placing these loans.
The transactions between Burr and appellant amounted to
the sum, it is claimed, of two hundred and fifty thousand dol-
lars, and extended over a period of many years; at least from
the spring of 1888, up to the latter part of 1894, and for a
period of about a year after the loan in question was paid. Some-
times, before the coupons upon the loans handled by Burr came
due, he would send out a notice to the mortgagors, notifying
them of the amount of interest, and the maturity of the same,
and request prompt remittance to him at Lincoln. The same
course was followed at the maturity of the principal notes.
There seems to have been no correspondence and no business
connections of any description between the borrowers of the
money and appellant, but Burr seems to have had exclusive
charge of the loan business in Nebraska for appellant. Burr
kept an open account with appellant bank in the name of J. M.
Siiaron, its cashier, which account he credited with all coupons
and ])rincipal notes collected, and in which lie charged appellant
for all items remitted. Burr testified that he collected more
than seventy-five thousand dollars in the manner indicated, all
of which belonged to appellant, ^^^^en mortgages became due
and were not paid, Burr, in many instances^ proceeded to fore-
Am. St. Rep., Vol. 101—41
642 American State Eeports, Vol. 101. [Nebraska,
close, and took title in his own *^^ name, and executed to ap-
pellant a mortgage and note for the amount of the original
note, with interest. W'hen mortgages matured and parties were
not able to pay, in many instances Burr granted extensions,
taking coupons signed by the parties, representing the accruing
interest during the period of extension, and sending them to
appellant. No objection was made by appellant to any of these
transactions.
In Burr's testimony, he stated that he had received as many
as three tliousand letters from the officers of ap})ellant bank,
regarding the loan business being transacted for tliem by him.
A number of these letters appear in the record, among which
is the following, which is set out in order to explain the char-
acter of tlie business relations v.-bich appear to have existed
between Burr and appellant r
"Cadiz, Ohio, ApL 21st, 1894.
"C. C. Burr, Esq., Lincoln, Xebr.
"Dear Sir: Your favor of the 17th inst. is received, contain-
ing New York draft for $3G, which pays the ])alance due on the
Thos. Murray $400 loan, collected by you, and I enclose you
the note, mort, rel. and aljst. in same.
"You say in payment of balance due on ]\Iurray and the ]\ris-
ner loans. If you will refer to my letter of April 13, you will
see that I said balance due on the IMurray loan $3G, and balance
due on the ]\Iisner loan $20, making $56 on the two. 1 see
tliis bal. sliould be $G1.40. The $122 credit reported was part
of the T. 1). ^loulton $250 note. Moulton lias not yet ])aid
all of this note.
"On another sheet I enclose you list of the loans you cbllcctcd
and showing credits on the same. [The accompanying list
showing seventeen loans which had been collected by Burr, and
payments credited thereon. | . . . .
"Yours trulv,
"[Signed] J. M. SHAKOX, Cas."
From the correspondence in the record, and from other testi-
mony, it is quite clearly established that Burr was permitted
bv aj)pollant to manage these loans, collect both princijial and
interest, in all respects as though they were liis own, ap])ellant
having apparently neither knowledge ^''^' nor concern about
the borrowers themselves. The olbcers of ap})i'llant bank testi-
fied that these coupons and notes were sent to Burr for pay-
ment on account of his indorsement, and not for collection. It
is suggested hy counsel for apjiellee, and^ we think, aptl}-, that
July, 1902.] Harrison National Bank v. Austin. 643
this claim of appellant is not consistent with sound business
principles, nor is it the usual method pursued by banks having
paper for collection. These notes and mortgages were made
payable at the First National Bank at Lincoln, and the uni-
form custom of appellant in sending them to Burr instead of
the bank cannot be reconciled with reason and sound business
methods if the contention of appellant that they were sent to
Burr as indorser or guarantor is to be credited. The fact that
they were uniforn:ily sent to Burr, taken in connection with
the letters from appellant to Burr appearing in the record,
sliowing, as they do, the custom of looking to Burr for the collec-
tion of overdue paper, quite conclusively establishes the conten-
tion of counsel for appellee that Burr was the agent of appel-
lant, and was so regarded by it. Appellant seems to have
availed itself of Burr's services in making these collections,
placing loans and foreclosing mortgages, until it was discov-
ered that Burr was in failing circumstances; and this, it ap-
pears from the record, was a discovery made about a year after
the note and mortgage in suit had been paid. It was then that
appellant made an investigation of its business in Burr's hands,
and found that he had misappropriated some sixteen thousand
dollars. Burr testified that the officers of appelUint bank were
in Lincoln on different occasions, staying in some instances sev-
eral days, visiting at his office, and that they must have known
of the manner in which he was doing business for them. It is
true that Burr did not have tlie note and mortgage in suit in
his possession at the time he made the collection; nor did he
have them again after sending them to appellant; but this is
only one of the circumstances which are to be taken into con-
sideration in determining whether or not Burr was in fact the
agent of appellant in the collection of the note and mortfjage in
*^^* suit. In the case of Pha-nix Ins. Co. v. Walter, 51 Xeb.
182, 70 X. W. 938, this court said: ''That the party to whom
monoy due another is paid is not in possession of the instru-
ments l)y which the indebtedness is evidenced, is not conclu-
sive of the question of the authority, or lack of it. in the party
receiving the money to collect it." To the same effect is Estey
V. Snyder, 76 Wis. G24, 45 X. W. 415, and Dunn v. IIonil)Ock,
72 X'. Y. 80, 87. Although this note and mortgage, as well
as other farm mortgages handled by Burr on behalf of appel-
lant, were made payal'le at the First Xational Bank of Lincoln,
appellant saw fit to s<'nd the note and mortgage direct to Burr
for collection, and allowed him to deal with the borrowers for
644 Amehican State Eeports, Vol. 101. [Nebraska,
a number of years in all respects as though he was the owner of
the mortgages. In the case of Johnston v. Milwaukee etc. Inv.
Co., 46 Neb. 480, G4 N. W. 1100, this court said: '^Vhere a
principal has, by his voluntary act, placed an agent in such a
situation that a person of ordinary prudence, conversant with
business usages and the nature of the particular business, is
justified in presuming that such agent has authority to perform
a particular act, and therefore deals with the agent, the prin-
cipal is estopped as against such third person from denying the
agent's authority": Holt v. Schneider, 57 Xeb. 523, 77 N. W.
1086. In the case at bar, the apparent authority with whieli
appellant clothed Burr, even if he was not in fact its agent,
and the acceptance by appellant of all the benefits of his acts
on its behalf, is such that justice requires that in this case ap-
pellant should sustain the loss. It conclusively appears from
the exhibits in this case that Burr did frequently collect both
principal and interest at the times when he did not liave the
notes or the coupons in his possession, remitting the amounts
collected to appellant, who tliereupon returned to him for de-
livery to the borrower the canceled evidences of the debts, and
who in no instance objected to this course on tlie part of Burr.
In First Xat. Bank of' Wilber v. Eidpatli, 47 Neb. !)6, 66 N. W.
37, this court said : ''When the extent of an agent's authority
is in issue, no special instructions having been given to liini,
^'^^ his actual authority to do a particular act in connection
with the transaction may be inferred from proof that tlie ])riu-
cipal had authorized or ratified similar acts in connection witli
past transactions of the same cluiractcr, and intrusted to tlie
agent under simihir circumstances." Tlie iestimony in the
record is sufficicMit to establish the fact found by the trial court
that Burr was the general agent of appellant in Xeliraska for
the negotiation and collection of farm loans whicli it had made
through Burr, and the right to collect the note before due suili-
ciently appears from his custom, ratified by appellants, of grant-
ing extensions, and renewals of other loans. This he a))par-
ently did wholly without objection on the ])art of appellant, and
lus acts concerning which were ratified by apjjelhint when
brought to its notice.
It ap])ears that the findings and judgment of the trial court
are sustained by sufficient competent evidence, and are right,
and it is, therefore, recommended that the same be affirmed.
Hastings and Day, CC, concur.
Sept. 1902.] Merrill v. Wright. 645
By the COUET. For the reasons stated in the foregoing
opinion, the judgment of the district court is aflRrmed.
One Who Holds Out Another as Eis Agent to act for him in a given
capacity, and by his habits and course of dealing justifies the in-
ference that such person is authorized to act as his agent, will not
be allowed to deny the agency to the prejudice of an innocent party
who has been led to rely upon the appearance of authority in the
agent: Union Stockyard etc. Co. v. Mallory, 157 111. 554, 48 Am.
St. Rep. 341, 41 N. E. 888. See, too, Adams Express Co. v. Carnahan,
29 Ind. App. 606, 94 Am. St. Eep. 279, 63 N. E. 245. 64 N. E. 647.
MEREILL V. WEIGHT.
[65 Neb. 794, 91 N. W. 697.]
A WRIT OF ASSISTANCE Will Issue Only Against Parties to
a suit, or persons in privity with them, who have been concluded by
a decree, and j^et refuse to permit the purchaser at judicial sale
thereunder to take possession, (p. 646.)
WHIT OF ASSISTANCE.— Questions of Title are not to be
tried on an application for a writ of assistance, as against persons in
jiossession claiming adversely to the parties and not bound by the
decree, (p. 646.)
WRIT OF ASSISTANCE.— It is Error to Award a writ of
assistance against one who entered upon land pendente lite, claim-
ing an independent title not derived from, or in succession to, any of
the parties to the suit or their privies, (p. 646.)
WRIT OF ASSISTANCE— Possession Under Void Tax Deed.—
One in possession in good faith under a void tax deed claims by an
independent title, and will not be dispossessed under a writ of as-
f-istance. (p. 647.)
LIS PENDENS.— The Purpose of the Rule of Lis Pendens is
to prevent third persons, during the pendency of the litigation, from
acquiring interests in the land which would preclude the court from
granting relief sought, (p. 647.)
LIS PENDENS— Independent Titles.— The rule of lis pendens
has no application to independent titles not derived from any of the
parties to the suit nor in succession to them. (p. 647.)
LIS PENDENS — Statutory Scope of.— Section 85 of the Ne-
braska Code of Civil Procedure does not extend the rule of lis
pendens so as to include all interests acquired by third persons pend-
ing suit, whatever their nature or source, (p. 648.)
AV. A. Saunders and J. W. Woodrough, for the appellant.
H. W. Pennock, for the respondent.
705 POUND, C. In one form or another this cause has been
hefore this court several times: ^Merrill v. Wright, 41 Nel). 351,
59 X. W. 787, 54 Xeb. 517, 74 N. W. 955. It now comes up
6i6 American State Eeports, Vol. 101. [Nebraska,
on appeal from an order granting a writ of assistance, which
presents a very curious state of facts. The suit was brought
in 1893 to foreclose a tax lien. The owners of the property
and those in possession under them were duly made parties.
There were two appeals, and sale was not had until 1902.
Meanwhile one Scott had purchased the property for taxes sub-
sequently assessed, and afterward taken a tax deed accordingly.
Claiming under this deed, he brought an action of ejectment
against the owners and those in possession, in the course of
which he obtained a judgment. Xo direct attack seems to have
been made upon this judgment, and a suit in equity to vacate
it and set it aside resulted adversely to the plaintiffs therein :
Scott v. Wright, 50 Neb. 849, 70 N. W. 396. After that suit
was determined, Scott obtained possession by writ of restitution
pursuant to the judgment. By this time sale had been had
under decree of foreclosure, and the purchaser demanded pos-
session by virtue of his deed. Xot obtaining it on demand, ap-
plication was made for a writ of assistance. The petition for
the writ and the answer of Scott disclose, substantially, the
facts above stated, and on such showing the writ was awarded.
We are of opinion that this is not a case for a writ of a^ssist-
anec. Tliat writ may issue onlv against parties to a suit, or
persons in privity with tliem, wlio have Ix'cn conchulod ''^*' ])v
a decree, and yet refuse to permit tlie purchaser at judicial
sale under sucli decree to take ])ossossi<)n : Terrell v. Allisou.
21 Wall. 281), 291, 22 L. cd. 034; Howard v. Bond. -12 MuA\.
131. 3 X. W. 289. Questions of title are not to be iri(>a on an
application for the writ, as against ])orsons in ])Osscssion, claim-
ing advei'selv to the ])arlies, and not bound bv tbc decree: Bar-
ton V. Boatty, 28 X. J. Eq. 412; Exum v. r.akor, 115 X. C.
2 12. 11 Am. St. liep. -119. -.^0 S. E. 448. It is error to award
i> a,L:ain-t a ])erson who liail entered upon land jx'ndente lite,
claiming an inde))eii(lent title, not derived from or in sucee.-sion
to anv of the ])nrlies to tbe suit or their privies: Ivxuni v.
Baker. M5 X. ('. 2 12, 44 Am. St. Eep. 4!!», 20 S. i:. 118;
Bickeiis V. Cliiea^iio Permanent Bldg. etc. Assn., (i? 111. A]))).
71: lla-rrman v. Ileltzel, 21 Wash. Ill, 58 Pac. 5S0; Toll v.
lliller. Jl Pai.L^o (X. Y.). 228; Van Hook v. Tbrockmorton, 8
Paige ( N'. Y.). •')•">. Witliout considering' the mei'its of vScott's
claim, llie nature of tbe title asserte<l stami)s it at once as new
and indeiKMuleiit. What rule sbould be aj^jilied if bis possession
under the tax deed and judgment in ejectment based thereon were
Sept. 1902.] , Merrill v. Wright. 647
shown to be fraudulent and collusive, in order to defea,t or hin-
der the foreclosure case, we need not decide. A void tax deed
is color of title and as such may be the basis of an adverse pos-
session: Lantry v. Parker, 37 Neb. 353, 55 N. W. 962. The
claim of title acquired under it is adverse to, not derived from,
that of other claimants. The nature of the claim under the
judgment in ejectment must depend upon the issues litigated
therein; and, as it is conceded the judgment was based upon
a title alleged to have been derived from the state under its rev-
enue laws, it is manifest that there was not a mere succession
to the interest of the Wrights, as in case of an action founded
on a conveyance by them, or on a sheriff's deed upon a money
judgment recovered against them. Even though the tax deed
was void, a party in possession thereunder in good faith claims
by an independent title, and may not be dispossessed under a
\\Tit of a.ssistancc: Exum v. Baker, 115 N. C. 24:2, 44 Am. St.
Eep. 449, 20 S. E. 448.
'"'*'' It is claimed, however, that Scott acquired whatever in-
terest he may have in the land pending tlie foreclosure suit,
and suhject to such decree as might afterward be rendered
therein. Had he taken under or in privity with any of the par-
ties to the suit, that would be the result, undoubtedly: State
V. Nebraska Distilling Co.. 29 Neb. 700. 4fi N. W. 155; Lin-
coln Rapid Transit Co. v. Rundlo, 34 Xeb. 559, 52 X. W. 563 ;
Clark V. Charles, 55 Xeb. 202, 75 X. W. 563. But we have
seen that he does not stand in such a position. The purpose
of the rule as to lis pendens is to ])revont tliird persons, during
tlie pendency of tlio litigation, from acfpiiring iiitoi'ests in tlie
land whidi v/ould preclude the court from gi'antiug tlie relief
sought: Bellamy v. Sabine, 1 De Gex &: J. (I'^ng.) 566. 584;
]\rurray v. Ballou, 1 Jolms. Ch. (X. Y.) 566 ; :\leClaskev v.
Barr, 4S Fed. 130; State v. Xebraslca Distilling Co.. 29 X(>]).
700. 4 6 X. W. 155. In Bellamy v. Sabine, 1 De (iex & J. ruS,
which is the leading ease upon this subject, Dord Crauwoi-th
said that the basis of the rule was the principle that "the hiw
does not allow litigant parties to give to others, })ending the
litigation, rights to the property in disj)ute, so as to prejudice
the opposite party." In IMurray v. Ballou, 1 Johns. Ch. (X.
Y.) 566, Chancellor Kent said: "Without it. as lias been ob-
served in some of the cases, a man, u])on the service of a sub-
poena, miglit alienate his lands and prevent the justice of the
court. Its' decrees might be wholly evaded.'' The scope of
648 American State Reports^ Vol. 101. [Nebraska,
the rule is determined by its end and purpose. Hence it has
no application to independent titles, not derived from any of
the parties to the suit nor in succession to them : Irving v.
Cunningham, 77 Cal. 52, 18 Pac. 878 ; 2 Pomeroy's Equity Ju-
risprudence, sec. 637. The rulings to the effect that one tak-
ing under execution on a money judgment against one of the
]jartics to a pending suit holds subject to the decree, in no way
conflict with this principle. Such a person succeeds to the
title of the execution debtor, and takes only what the latter had,
subject to all claims which existed against it in his hands of
which he can be charged with notice. But whore an independ-
ent title is acquired from another source, such fact does not
"^^^ operate to prevent the court from granting the relief sought
in the pending cause. That relief consists in subjecting the
title of some of the parties to some claim or lien or equity. To
whomsoever that title passes pending suit, tlie relief may still
be granted against it. No relief is sought, however, and none
is obtainable, in that suit against independent titles not derived
from or dependent upon those of any parties to the suit. Deal-
ings in these titles pendente lite cannot operate prejudicially
to the power of the court or the rights of the litigants. In this
state, if the owners of land subject to a tax lien are unknown,
the holder of tlie lien may proceed in rem against the land. In
such case any interest acquired in the land from any source
j^ending suit would interfere therewith, and hence must be sub-
ject to the decree therein. But if the owners are known, the
remedy is to foreclose by an ordinary suit, and subject the in-
terest of such owners to satisfaction of the lion. In such case
the scope of the lis pendens rule must be confined to the inter-
ests and estates sought to be subjected, and cannot extend to
independent and adverse titles. Counsel contends that section
85 of the Code of Civil Procedure is broader than the general
rule, and must constrain us to extend it so as to include all in-
terests acquired by third persons pending suit, wluitever their
nature or source. While the language of that section, "no in-
terest can be acquired by third persons in tlie subject matter
thereof, as against the plaintiff's title," is very broad, we are
satisfied tliat it should be construed with reference to the pre-
existing equity rule, which it evidently intended to adopt, and
the obvious r(>ason and principle behind it. To bold that no
one could actiuire rights by adverse possession or under tax
sales pending a protracted litigation oy creditors' bill or suit
to quiet title would be most unfortunate in its results.
Sept. 1902.] Merrill v. Wright. 649
We therefore recominend that the order appealed from be
reversed and the application for the. writ of assistance dis-
missed.
Barnes and Oldham, CC, concur.
"""^^ By the COUET. For the reasons stated in the foregoing
opinion, the order of the district court is reversed and the ap-
plication for a writ of assistance is dismissed.
When a Writ of Asststaiwc will issue is discussed in the monographic
notes to Clay v. Hammond, 95 Am. St. Eep. 159-165, and Wilson v.
Polk, 51 Am. Dec. 152-158. A purchaser at a tax sale, not claiming
title through or under a mortgagor, mortgagee, or his assignee, and
not a party to a proceeding to foreclose the mortgage, is not in
privity with them, and a writ of assistance will not issue against
him at the instance of the purchaser at the foreclosure sale: Exum
V. Baker, 115 N. C. 242, 44 Am. St. Eep. 449, 20 S. E. 448.
TTic Law of Lis Pendens is the subject of a monographic note to
Stout V. Phillippi Mfg. etc. Co., 56 Am. St. Rep. 853-878. For sub-
sequent decisions on this subject, see Goff v. McLain, 48 W. Va.
445, 86 Am. St. Eep. 64, 37 S. E. 566; Olson v. Leibpke, 110 Iowa,
594, 80 Am. St. Eep. 327, 81 N. W. 801; Euth v. Wells, 13 S. Dak.
482. 79 Am. St. Eep. 902, 83 N. W. 568; Summerville v. March, 142
Cal. 554, 100 Am. St. Eep. 145, 76 Pac. 388. The general 'rule is
that lis pendens is notice to those only who attempt to acquire some
interest in the subject matter of a litigation after suit is begun,
and from a party thereto: Noyes v. Crawford, 118 Iowa, 15, 96 Am.
St. Eep. 363, 91 ^N. W. 799.
CASES
IN THE
SUPREME COUET
OK
NEW HAMPSHIRE.
MECHANICKS NATIOXAL BAXK v. CO:^rJXS.
[72 N. H. 12, 55 Atl. 191.]
INSURANCE, LIFE — Insurable Interest. — Insurance procnrcil
by one jjerson upon the Jife of another in which he has no insurable
interest, is against public policy and void as a wager contract, (p.
651.)
INSURANCE, LIFE— Insurable Interest.— Any reasonable ex-
pectation of pecuniary benefit or advaiitage, either directly or indi-
rectly, from the continued life of another, creates an insurable in-
terest in such life, though there may be no claim upon the person
whose life is insured that can be recognized in law or in equitv.
(pp. 6.51. 6.32.)
INSURANCE, LIFE — Insurable Interest. — Insurance upon the
life of the manager of a corporation, procured by one who furnishes
funds to carry on the business, is not void for want of an insurable
interest, (p. G53.)
INSURANCE, LIFE— Insurable Interest— Assignment.— A pol-
icy of life insurance valid in its inception may be assi;Micd to one
having no insurable interest in the life insured, if the assit^nuicnt is
bona fide and not a device to evade the law a.i;;u:ist wagi r policies.
(p. GoiK)
INSURANCE, LIFE— Waiver of Conditions— Assigmnent.— A
provision in a policy of life insurance that any claim t hci-cuiider by
an assignee shall be suliject to satisfactory proof of interest in the
life of the insured is for the protection of the insurer, and waived by
a t'ormal admission of lialdlity and ])ayM!cnt of the moii(\v <luc into
court, ;ind is not available to one who asserts a claim to Iho proceeds
of the policy adversely to an assignee thereof, (p. G.5S.)
SURETYSHIP — Discharge of Security. — If a person pledges hig
property as securitv for the performance of the contract of a third
person," the property stands in the jiosition of a surely, and any
change in the contract wliich would liave discharged a surety upon
the contract will discharge the property pledged as security, (p.
658.)
(CM)
Jan. 1903.] Mechanicks National Bank v. Comins. 651
Streeter & Hollis, for the plaintiffs.
G. M. Fletcher and Sargent, ISTiles & Morrill, for the defend-
ants.
14 EEMICK, J. The fundamental contention of the de-
fendant is that the assignment was against puhlic policy and
void, because the plaintiffs to whom it was made had no insur-
able interest in the life of George T. Comins, the subject of
the policy assigned,
^^ It is, indeed, firmly established that insurance procured
by one person upon the life of another, the former having no
insurable interest in the latter, is void as a wager contract,
against public policy, which condemns gambling speculations
upon human life. And the defendant contends that a policy
can no more be assigned than originally issued to a person hav-
ing no insurable interest. To this contention the plaintiffs re-
ply: 1. That tlicy had an insural)le interest in the life of
George T. Comins at the date of the assignment by reason of
being a heavy creditor of the George T. Comins Company, of
which George T. Comins was the manager; 2. That tlie pol-
icy having been originally issued to George T. Comins under
such circumstances as to constitute it a good and valid contract
of insurance as against the world, its subsequent assignment
to tliem in the regular course of business was valid, whether
they had an insurable interest in the life of George or not.
1. Did the plaintiffs have an insurable interest? "It is not
easy to define with precision what will in all cases constitute
an insurable interest, so as to take the contract out of the class of
wager policies But in all cases there must be a reasonable
ground, founded upon the relations of the parties to each other,
either pecuniary or of blood or alTinity, to expect some bene-
fit or advantage from the continuance of the life of the as-
sured": Warnock v. Davis, 104 U. S. 775, 779, 26 L. ed. 9-31;
Adams v. Tieed, IS Ky. Law Eep. 858, 38 S. W. 420, 421, 85
L. E. A. 692. ''It may be said generally that any reasonable
expectation of pecuniary benefit or advantage from the contin-
ued life of another creates an insurable interest in such life":
Connecticut etc. Ins. Co. v. Schael'er, 94 IJ. S. 457, 460, 2 1: L.
ed. 251. "It is not necessary .... that the one for whose
l>eneflt the life of another is insured should l)e a creditor of
tliat other. It is enough that in the ordinary course of e\'outs
loss and disadvantage will naturally and probably arise to the
party in whose favor the policy is written, from the death of
652 American State Reports^ Vol. 101. [X. H.
the person whose life is insured": Hoyt v. Insurance Co., 3
Bosw. 440, 446; Kentucky Ins. Co. v. Hamilton, 63 Fed. 93, 11
C. C. A. 42. "The interest need not he such as to constitute
the basis of any direct claim in favor of the plaintiff upon the
party whose life is insured; it is sufficient if an indirect ad-
vantage may result to the plaintiff from his life" : Trenton etc.
Ins. Co. V. Johnson, 24 N". J. L. 576, 586. The tendency of
the American decisions "is to hold that wherever there is any
Avell-founded expectation of or claim to any advantage to be
derived from the continuance of a life, there is an insurable in-
terest in the life, though there may be no claim upon the per-
son whose life is insured that can be recognized in law or in
equity": Bliss on Life Insurance, sees. 21-31; ]\Iay on Insur-
ance, sees. 102-111. "A *^ pei-son has an insurable interest
in the life of another when there is a reasonalile prol)ability
that he will gain by the tatter's remaining alive, or lose by his
death": 3 Kent's Commentiiries, 14th ed., 566, note. Tlic re-
sult of a recent review of the American cases is thus stated :
"An insurable interest which will take an insurance policy out
of the class of wager policies is such an interest arising from
tics of blood or other relations as will justify a reasonable ex-
pectation of advantage or benefit from a continuance of the
life of the assured. This rule, it would appear, does not dis-
pense entirely with a pecuniary interest, but merely perjuits
tliat interest to consist of a mere expectation of pecuniary ben-
efit, as distinguished from the requirement of the otlier rule,
that the interest must amount to a claim recognizable or en-
forceable in law": 54 1j. R. A. 234. note. In short, ''tbo es-
sential thing is that the policy shall be obtained in good faith
and not for the purpose of speculating upon the hazards of a
life": Connecticut etc. Ins. Co. v. Schaefer, 94 IT. S. 157. -160,
24 L. ed. 251; Kentucky Ins. Co. v. Hamilton, 63 Fed. 93, 101,
11 C. C. A. 12: lyoomis v. Eafrle etc. Ins. Co., 6 Cray. 396.
If, as the jilaintifTs concede, there is no case in point with
the one at bar, the foregoing quotations from so manv different
sources of the highest authority leave no doubt as to the gen-
eral principle governing it. In accordance with this principle,
it is held that a partner has an insurable interest in the life
of his copartner, upon whose co-operation he relies for the suc-
cess of the business: Connecticut etc. Ins. Co. v. Luchs, 108 U.
S. 498, 2 Sup. Ct. Kep. 919, 27 L. ed. 800; ]\[orrell v. Trenton
etc. Ins. Co., 10 Cush. 282, 57 Am. Dec. 92; Valton v. Xa-
tional Fund etc. Co., 20 X. Y. 32; Fowell v. Dewey, 123 X.
Jan. 1903.] Mechanicks National Bank v. Comins. 653
C. 103, 68 Am. St. Eep. 818, 31 S. E. 381, 18 Cent. L. J. 347.
So when one furnishes the capital and outfit for a mining ex-
pedition, it is held that he has an insurable interest in the life
of him to whom he commits the management and success of
the enterprise. It is hardly necessary to say that the success
of a corporate enterprise may be so interwoven with the per-
sonality of its manager that its stock is taken, and money is
leaned to carry it on, as much in reliance upon that personality
at upon the intrinsic merit of the enterprise; and no good rea-
son appears why a stockholder or creditor, the value of whose
investment may be reasonably said to depend upon the life or
health of the man at the helm, should not have an insurable
interest in his life, the same as one who invests money in a
partnership, relying upon the skill or experience of his copart-
ner, has an insurable interest in the life of the latter, or one
v.'ho equips a mining expedition has an insurable interest in the
life of him to whom its management is committed. The cred-
itor or stockholder under such circumstances would seem to
have that "reasonable expectation of pecuniary benefit or profit
from the continuance of another's life," ^^ which is held suffi-
cient to constitute an insurable interest. In such case "the
essential thing .... that the policy should be obtained in
good faith and not for the purpose of speculating upon the
hazards of life," would appear to be present. In this view we
are not prepared to say as matter of law (Wainewright v. Bland,
1 Moody & R. 481; Swick v. Home Ins. Co., 2 Dill. IGO, Fed.
Cas. Xo. 13,692, 2 Ins. L. J. 415 ; Langdon v. Union etc. Ins.
Co., 14 Fed. 272, 274, 275; Steinback v. Diepenbrock, lo8 X.
y. 24, 31, 32, 70 Am. St. Rep. 424, 52 X. E. 662, 44 L. R. A.
417) that the plaintiffs, who were furnishing the funds to carry
on the business of the George T. Comins Company had no in-
surable interest in the life of George T. Comins. the manager
and apparently the originating and directing personality in the
enterprise.
2. But assuming tliat the plaintiff's had no such insurable in-
terest in George T. Comins as would entitle them to take out a
])olicy on his life, it does not follow that a policy previouslv
taken out by George T. Comins upon his own life, with no ol)-
jectionable purpose, but under the full sanction of the law,
could not afterward be assigned by him to the plaintiffs, with
the consent of the beneficiary, for a sufficient consideration and
bona fide object.
G54 American State Eeports, Vol. 101. [N. H.
In Elliot on Insurance (1902), the latest treatise upon the
subject^ the state of the law is thus declared (section 62) :
"The question whether a policy valid at its inception may after-
ward, before the death of the insured, be assigned to one who
has no insurable interest in the life of the insured, has been
much discussed, and the authorities are in hopeless conflict/'
"The tendency in business life has been to liberalize the rules
governing life insurance and tlius to broaden its scope. It was
found desirable that life insurance policies should pass freely
by transfer and assignment; and so long as this was with the
consent of the parties, it was felt that the objections on the
ground of public policy were largely illusory. Thus a more
liberal rule has been adopted in many states, where it is held
that a policy supported by an interest in its inception is a mere
chose in action, which may be assigned to a person who has no
insurable interest in the life. Such assignment docs not create
a new contract, but merely continues the old contract in force.
A person may tlius insure his own life, and eitlicr name or as-
sign the policy to whomsoever he chooses, without reference to
the interest of such beneficiary in his life. The rule that the
assignee of a valid policy need not have an insural)le interest in
tlic life prevails in California, Colorado, Georgia, Illinois, In-
diana, Maryland, Massachusetts, Mississippi, Xew York, Ohio,
l^hode Island, Vermont, Wisconsin, South Carolina and in Eng-
land and Canada. The doctrine seems to be supported by the
weight of authority, but it must be noted tliat, under either
rule, the essential fact is tliat the transaction must be bona fide,
and not a mere ^^ cover for a wagering or speculative insur-
ance, or a device to evade the law. In fact, many of the cases
which hold an assignment without interest void will, upon close
examination, be found to rest upon tlie fact that the transaction
in question was merelv colorable, and an attempt to obtain spec-
ulative insurance'^: Elliot on Insurance (1902), sec. G3.
"There see>ms to be a clear distinction between eases in which
the policv is jU'ocured by the insured ])ona fide of his own mo-
tion, and cases in which it is procured by anotlier. Tt is a very
different thing to allow a man to create voluntarily an inter-
est in his termination, and to allow some one else to do it at
their will. The true line is in the activity and responsihility
of the assured, and not the interest of the person entitled to the
funds. It is well estaldished that a man may take out a policy
on his own life, ])ayal)le to any person he yileases: and it is
drawing a distinction without a difference to hold that he cannot
Jan. 1903. J Mechanicks National Bank v. Comins. 655
take out a policy and afterward transfer its benefits": May on
Insurance, 4th ed., sec. 398A.
"It is one thing to say that a man may take insurance upon
the life of another for no purpose except as a speculation or
bet on his chance of life and may repeat the act ad libitum, and
quite another thing to say that he may purchase the policy as
a matter of business after it has once been duly issued under the
sanction of the law, and is therefore an existing chose in action
or right of property, which its owner may have the best of rea-
sons for wishing to dispose of. There is in such a purchase,
in our opinion, no immorality and no imminent peril to human
life": Clark v. Allen, 11 E. I. 439, 23 Am. Eep. 496. "It is
said that if the payee of a policy be allowed to assign it, a safe
and convenient method is provided by which a w^agering con-
tract can be safely made. The insured, instead of taking out
a policy payable to a person having no insurable interest in his
life, can take it out to himself and at once assign it to such
person. But such an attempt would not prove successful, for
a policy issued and assigned under such circumstances would
be none the less a wagering policy because of the form of it.
The intention of the parties procuring the policy would deter-
mine its character, which the courts would unhesitatingly de-
clare in accordance with the facts, reading the policy and as-
signment together, as forming part of one transaction
"J^he point of actual separation between the cases asserting the
assignability and those asserting the nonassignability of poli-
cies of insurance, to persons not interested in the continuance
of the life of the assured, seems to be that those asserting non-
assignability proceed on tlie assumption that the question is
one of law, and that if a policy is not assignable in one case,
it cannot be in any case ; while in the other line of cases the
underlying principle is that all valid contracts are assignable,
liut that contracts are not necessarily ^^ valid and free from
the taint of gambling because upon their face thev appear to
be regularly and properly issued. In order to ascertain the
truth, all the facts and circumstances may be proved; and if it
then appears that the parties intended by the contract to enable
a third and uninterested party to speculate upon the life of an-
other, the court will declare such contracts invalid, not because
of the assignment, but in spite of it: Steinl)ack v. Diepenbrock,
158 N. Y. 24, 31, 32, 70 Am. St. Eep. 424. 52 N. E. 662. 44
L. E. A. 417; Swick v. Home Ins. Co., 2 Dill. KiO, Fed. Cas.
Xo. 13,092, 2 Ins. L. J. 415; Langdon v. Union etc. lus. Co.,
G56 Amebican State Eeports, Vol. 101. [N. H.
14 Fed. 272; Wainewright v. Bland, 1 Moody & R. 481. See,
also, notes, 57 Am. Dec. 103, 52 Am. Eep. 143; 58 Am. Eep.
855; 16 Am. St. Eep. 906; 17 Am. Law Eeg. 86.
We think both reason and authority sustain the conclusion
that a life policy of insurance, valid in its inception, may be
assigned to one having no insurable interest in the life insured,
if the assignment is bona fide and not a device to evade the law
against wager policies: Fairchild v. Association, 51 Vt. 613;
Mutual Life Ins. Co. v. Allen, 138 Mass. 24, 52 Am. Eep. 245;
Clark V. Allen, 11 E. I. 439, 23 Am. Eep. 49G; Fitzpatrick v.
Hartford etc. Ins. Co., 56 Conn. 116, 132, 133, 7 Am. St. Eep.
288, 13 Atl. 673, 17 Atl. 411; Steinbaek v. Dieponbrock, 158 N.
Y. 24, 29, 30, 31, 32, 70 Am. St. Eep. 424, 52 N. E. 662, 44
L. E. A. 417; Eittler v. Smith, 70 Md. 261, 265-269, 16 Atl.
890, 2 L. B. A. 844; Crosswell v. Connecticut etc. Assn., 51 S.
C. 103, 105, 109, 28 S. E. 200; Bursinger v. Bank of Watertowm,
67 Wis. 75, 58 Am. Eep. 848, 30 N. W. 290. Authorities might
be multiplied, but as they are fully collected on both sides
of the question in the foregoing cases and notes, it would be
useless to do so.
The defendant relics upon Warnock v. Davis, 104 L". S. 775,
26 L. ed. 924, and Lanouctte v. Laplante, 67 X. H. 118, 36
Atl. 981. Speaking of the former case, and of the earlier case
of Canimack v. Lewis, 15 Wall. 643, 21 L. ed. 244, the supreme
court of ]\[assachusetts, in ]\Iutual Life Ins. Co. v. Allen, 138
Mass. 24, 32, 52 Am. Eep. 245, said they "were both cases in
which the policies were taken out by the proeurcnient of the
assignees, in order that they might be assigned to them, under
such circumstances as that they will be held to be in evasion of
the law prohibiting gaming policies. The remark of Mr.
Justice Field in the latter case, that "^the assignment of a policy
to a party not having an insurable interest is as objectionable
as the taking out of a policy in his name,' was not neces-
sary to the decision." The supreme court of Connecticut has
also said, referring to Warnock v. Davis, 104 TJ. S. 775, 779, 26
L. ed. 924 : "The expressions to the effect that the law permits
a transfer only to a person who has an insurable interest in the
life insured, were doubtlessly occasioned by the Ix'lief that the
contract under consideration was a wager": Fitzpatrick v.
Hartford etc. Ins. Co., 56 Conn. 116, 133, 7 Am. St. Eep. 288,
13 Atl. 673, 17 Atl. 411. That they were not intended to de-
clare that a policy valid in its inception could not, under any
circumstances, be transferred to one having no insurable inter-
Jan. 1903.] Mechanicks National Bank v. Comins. 657
est, would ^** seem clear from the later expressions of the same
judge in New York etc. Ins. Co. v. Armstrong, 117 U. S. 591,
597, 6 Sup. Ct. Rep. 877, 880, 29 L. ed. 997, where he said :
"A policy of life insurance, without restrictive words, is assign-
able by the insured for a valuable consideration equally with
any other chose in action, where the assignment is not made to
cover a mere speculative risk and thus evade the law against
v.-ager policies." The earlier decisions of the same tribunal are
as inconsistent as this later one with the view of Warnock v.
Davis, 104 U. S. 775, 26 L. ed. 924, contended for by the de-
fendant. Thus, in Connecticut etc. Ins. Co. v. Schaefer, 94 U.
S. 457, 462, 24 L. ed. 251, the court said : "But supposing a
fair and proper insurable interest, of whatever kind, to exist
at the time of taking out the policy, and that it be taken out in
good faith, the object and purpose of the rule which condemns
wager policies is sufficiently attained." The headnote is : "Any
person has a right to procure an insurance on his own life, and
assign it to another, provided it be not done by way of cover for a
wager policy." In Aetna Life Ins. Co. v. France, 94 U. S. 561,
24 L. ed. 287, the court said: "As held by us in the case of
Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457, 462,
24 L. ed. 251, .... any person lias a right to procure an in-
surance on his own life and assign it to another, provided it be
not done by way of cover for a wager policy." Warnock v.
Davis is reviewed and distinguished, and the conclusion is
reached in the present case ably sustained, in Fitzpatrick v.
Hartford etc. Ins. Co., 56 Conn. 116, 132, 133, 7 Am. St. Eep.
288, 13 Atl. 673, 17 Atl. 411, Steinback v. Diepenbrock, 158
N. Y. 24, 31, 32, 70 Am. St. Rep. 424, 52 N. E. GG2, 44 L. R.
A. 417, Rittler v. Smith, 70 Md. 261, 265, 266, 267, 16 Atl.
890, 2 L. R. A. 844, and Croswell v. Connecticut etc. Assn., 51
S. C. 103, 105-109, 28 S. E. 200.
In Lanouette v. Laplante, 67 N. 11. 118, 36 Atl. 981, the court
said: "The transaction in a legal aspect docs not dill'er from
what it would have been if lie [the beneficiary | had himself pro-
cured the insurance with IMrs. Lawrence's [the subject of in-
s\irance] assent." Tluis the policy was treated as a wager eon-
tract in its inception. The case therefore, is no more an author-
ity than Warnock v. Davis, for the proposition for which the
defendants contend here, but is entirely consistent with the
conclusion reached in the present case.
American Legion of Honor v. Sides, 67 N. H. 595, 39 Atl
1112, was not a case of assignment. The policy there in ques-
Am. St. Rep., Vol. 101—42
658 A:merican State Eeports, Vol. 101. [K H.
tion was payable to the defendant when issued, and the pre-
miums were paid by him. The court evidently proceeded upon
the idea, as in Lanouotte v. Leplanto. G7 N. H. 118, 36 Atl. 981,
and Warnock v. Davis, 104 U. S. 775, 26 L. cd. 924, that "the
transaction in a legal aspect did not differ from what it would
have been if the defendant had himself procured the insurance,"
and that it was a wager contract in its inception. The fact that
the case was disposed of without comment, upon the authority of
Lanouette v. Laplante, 67 N. II. 118, 36 Atl. 981, ^i confirms
til is view. Like Warnock v. Davis, 104 TJ. S. 775, 26 L. ed.
924. and Lanouette v. Laplante, 67 N. H. 118, 36 Atl. 981, it is
distinguishable from the present case.
3. The provisions in the policy regarding assignment, upon
which tlie defendant relics, were inserted for the protection of
the company. The company has waived them by admitting
liability and paying the money into court. They are not avail-
able to the defendant: Knights of Honor v. Watson, 64 N. H.
517, 15 Atl. 125; Brown v. Mansur, 64 N". H. 39, 5 Atl. 768.
4. But assuming the validity of the assignment, the defend-
ant contends that, as it was made as a pledge or security for the
debt of another, its legal relation was that of a surety, and that
it was discharged by certain transactions between the plaintiffs
and the principal debtor changing the terms of the contract, to
which the policy was collateral, and the status of security, to
which tlie defendant, in case he paid the principal indebtedness,
would have been entitled to subrogation.
Of the soundness of the legal proposition, that 'Svhen a person
pledges his property as security for the performance of the con-
tract of a third party, the property stands in the position of a
surety, and any change in the contract which would have dis-
charged a surety upon the contract will discbarge the property
pledged as security," there would seem to be no doubt: Brandt
on Guaranty and Suretyship, 2d ed., sec. 34; Eowan v. Sharp's
Trifle Mfg. Co., 33 Conn. 1 ; Price v. Dime Savings Bank, 124 111.
.117, 7 Am. St. Rep. 367, 15 K E. 754. The trouble is not with
the law of the defendant's position in this respect, but with
the facts. As we understand the finding of the court, tlie de-
fendant assented to the transaction of December 1, 1892, and
that the policy should remain with the plaintiffs as security for
tlie notes tben substituted. The facts reported are quite sulli-
cient to warrant tbis finding. Having so assented, it is hardly
necessary to say that the defendant is now esto})ped to claim
u (lisclmrge on account of that transaction: Crosby v. Wyatt, 10
Jan. 1903.] Mechanicks ISTational Bank v. Comins. 659
N; H. 318, 324; Watriss v. Pierce, 32 N. H. 560; Hutchinson
V. Wright, 61 N". H. 108 ; Brandt on Guaranty and Suretyship,
2d ed., sec. 342. Furthermore according to the case as amended,
the transaction of 1892 involved no extension.
As we understand the finding of the court, the transaction of
Xovemher, 1894, was neither a payment nor an extension of the
principal indebtedness, nor a change in the status of any security
held by the plaintiffs to which the defendant would have been
entitled to be subrogated had he paid the principal debt, except
such change as resulted from the bona fide foreclosure of the
plaintiff's mortgages and due application of the proceeds in re-
duction of the primary obligations. No other interpretation
would be consistent with the decree. If we have misinterpreted
the finding of the court, and the foreclosure was in fact only a
matter of form, ^^ and the real transaction was a transfer of
the property of the Comins Company to the Beecher's Falls Com-
pany, pursuant to a binding agreement between the plaintiffs
and the Comins Company that the plaintiffs would thereafter
look for their pay to the Beecher's Falls Company and not to
the Comins Company, then there would appear to have been
such a modification of the terms of the contract, for the per-
formance of which the policy was pledged, as to effect a dis-
cliarge of the policy as security.
5. The mortgage sale "and the amount of the proceeds of each
sale (five thousand dollars and eighteen thousand dollars), were
sho\\Ti by the record," and, upon such showing, were found as
facts. The sale and the proceeds thereof already appearing as
"facts" from the record, and the application of the proceeds to
the mortgage indebtedness following as matter of law, the admis-
sion of the indorsement upon the wrapper, merely evidencing
the same facts, was not reversible error, especially in the ab-
sence of anything in the case showing or indicating a claim that
in these respects the facts were otherwise than as shown by the
record: Wiggin v. Damrcll. 4 jST. II. 69; Foye v. Leighton, 24
X. H. 29, 37, 38 ; Wait v. Xashua etc. Assn.f 66 X. II. 581, 49
Am. St. Eep. 630, 23 Atl. 77, 14 L. E. A. 356.
Exceptions overruled.
Chase and Walker, J J., did not sit; the others concurred.
An Insurahle Interest in the life of another must, it is said, be a
pecuniary interest: Prudential Ins. Co. v. Hunn, 21 Ind. App. 525,
69 Am. St. Eep. 3S0, 52 N. E. 772. Kinship, however, is not neces-
sary: Carpenter v. United States etc. Ins. Co., 161 Pa. St. 9, 41 Am.
GGO American State Eeports, Vol. 101. [N. H.
St. Rep. 8S0, 28 Atl. 943, 23 L. R. A. 571. A creditor has an in-
surable interest in the life of his debtor: Insurance Co. v. Dunscomb,
108 Tenn. 724, 91 Am. St. Rep. 769, 69 S. W. S45, 58 L. R. A. 694. And
a partner may have an insurable interest in the life of his copart-
ner: Cheeves v. Anders, 87 Tex. 287, 47 Am. St. Rep. 107, 28 S. W.
274. Compare Powell v. Dewey, 123 N. C. 103, 68 Am. St. Rep. 818,
31 S. E. 381. But a building association has no insurable interest
in the life of a member not indebted to it: Tate v. Commercial Bldg.
Assn., 97 Va. 74, 75 Am. St. Rep. 770, 33 S. E. 382, 45 L. R. A. 243,
A woman has an insurable interest in the life of a man whom she
is under contract to marry: Qpitz v. Karel, 118 Wis. 527, 99 Am. St.
Rep. 1004, 95 N. W. 948.
A Life Insurance Policy may be As><i(jncd, according to many authori-
ties, to one without any insurable interest in the life of the insured.
Other authorities regard such assignments invalid: See the mono-
graphic note to Chamberlain v. Butler, 87 Am. St. Rep. 506, 508.
MUEEAY V. BOSTON" AND MAINE EAILROAD.
[72 N. H. 32, 54 Atl. 289.]
EVIDENCE — Res Gestae. — Declarations or statements made by
a person immediately after the injury is inflicted upon him, as an
intimately connected and natural result or detail thereof, in the pres-
ence of all the physical facts of the accident, are admissible as part
of the res gestate. (p. 664.)
EVIDENCE — Res Gestae. — Declarations by an injured person
as to the cause of the accident, made immediately thereafter, cannot
bo excluded as part of the res gcstate on the ground that thoy are in
the form of a narrative, and made in answer to a question, (p. 666.)
MASTER AND SERVANT— Assumption of Risk.— A railroad
employe does not assume the risk of accident from proximity of a
jigger-stand to a switch when he has no knowledge of it, and is not
chargcaV)le with such knowledge in tlie exercise of ordinary care in
the performance of his duties, (p. 667.)
NEGLIGENCE — Accident — Evidence. — The manner of the oc-
currence of an accident, as disclosed by the evidence, may warrant
an inference in favor of the person injured, that he had no knowl-
edge of a defective appliance which caused the accident, (p. 667.)
MASTER AND SERVANT — Assiiraption of Risk. — Knowledge
by a liiakiMnan of a jiggor-stand in close proximity to a switch is
not shown by the fact that he has been over the railroad a number
of times within a short period before tiie accident, when such stand
is not so conspicuous as to necessarily attract his notice, and men
who have worked with him during that time have not noticed it.
(pp. 668, 669.)
MASTER AND SERVANT — Assumption of Risks. — The fact
that jigger-stands are frequeutly placed along railroad tracks does
not charge a railroad employfi with notice that one may be near a
switch, when tlicy usually lead into carhouses and are not generally
placed near switches, (p. G69.)
Feb. 1903.] Murray v. Boston etc. Eailroad. 661
MASTER AND SERVANT — Negligence. — Direct Evidence is
not necessary to show due care on the part of an employ^ at the
time of an accident and injury to him. The fact that he is in the
exercise of due care may be inferred from circumstances, if there
is no evidence of his negligence, (p. 669.)
Doyle & Lucier, for the plaintiff.
Burns & Bums and Hamblett & Spring, for the defendants.
^^ WALKEE, J. It is claimed that Baker's statement made
directly after the infliction of ^s injury was not admissible.
If the declaration was merely a narrative of a past event, the
evidence of it would be inadmissible, upon the ground that
ordinarily hearsay evidence is not received in proof of the truth
of an assertion. The uniform practice of the courts in common-
law jurisdictions has resulted in the establishment of this prin-
ciple, as a necessary and useful rule in the investigation of
questions of fact. But when the declaration of one not a sworn
witness upon the trial is something more than mere narrative —
when its probative force is derived in part, at least, from sources
other than the credibility of the declarant — an ^** opportun-
ity is afforded for the argument that it does not fall within
the strict rule against hearsay evidence, or that it constitutes
an exception to the rule. It is then possible to say that the
declaration, while verbally a mere narrative, is something more,
and may be, for that reason, of such probative force as to be
admissible as evidence upon a material issue. It may be so con-
nected with other controverted facts as to be itself a fact or cir-
cumstance naturally growing out of and in some sense attested
by them. The verbal statement of a person made under some
circumstances may be a part of the actual occurrence, and be
entitled to as much weight as evidence as any other part of
the transaction. This is the principle, it is believed, that is
involved in the somewhat obscure doctrine of res gestae, which
is often resorted to, apparently, more on account of its con-
venient indefiniteness than for its scientific precision. But the
principle, whether expressed in an abbreviated Latin phrase
or otherwise, is an important one in any system of evidence
whose object is the ascertainment of facts. Its development has
been promoted, in modern times, by an effort to afford the
triers of fact all reasonable means of ascertaining the truth,
instead of withholding from them all information possible by
the rigid application of certain rules of exclusion. The ques-
CG3 American State Reports, Vol. 101. [N". H.
tion is not now, how little, but how much, logically competent
proof is admissible.
In cases of this character, it is important to ascertain what,
if any, relevancy the declaration has; in other words, what it
tends to prove; for unless its natural effect is to prove or ex-
plain a point in issue or a controverted fact, it is not admis-
sible. In this case the burden was upon the plaintiff to estab-
lish by a balance of the probabilities that his intestate received
his injury in consequence of the negligence of the defendant.
This, in a broad general sensa^ was the issue tried; but it in-
volved a material inquiry as to the manner in which the acci-
dent happened. If it is assumed that suffering the planks to
be where it is admitted they were was a negligent act of the
defendant, it was important for the plaintiff to show that they
were the proximate or effective cause of tlie accident. If in
the exercise of due care tlie deceased would not have received
the injury complained of but for the existence of tlie planks
at that particular place and time, the plaintiff would have sus-
tained the burden assumed by hini. On the other hand, if tiie
cause of the accident was something otlier tlian the planks, as
manifestly might have been the case, his failure in this respect
might have l)een fatal : iSTashua Iron etc. Co. v. Worcester etc.
R. R. Co., 62 X. H. 159. The controversy was whetlier the
planks caused the deceased to stumble and fall, and thus to
suffer the injury inflicted upon him by the car wheel running
over his legs. The plaintiff's evidence ^® was that the deceased
was found almost immediately after the accident lying between
the planks, with his legs practically severed from his body; that
the fragments of his broken lantern were on the ground near
him; and that blood and bits of flesh were found upon the
car wheel and near the planks. These are all pliysieal facts
which as evidence afford some information as to how the acci-
dent ha})pencd. They are relevant, details or results of the
main fact. In the strictest sense, they may not together con-
stitute or fully evidence the fact in controversy; but in law
tliey are said to be a part of it. The admission of evidence
of this character is placed upon the ground that it discloses to
the jury the facts and circumstances whicli attended the prin-
cipal fact; in a not inappropriate sense, they are a part of the
res gestae, and exist as evidence of it: "Willis v. Quimby, 31
X. H. 485; Tucker v. Peaslee, 3G X. IT. 167. 181; Wvman v.
Perkins, 39 X. II. 218; Willey v. Portsmouth, 61 X. "H. 214,
219, 9 Atl 220.
Feb. 1903.] Murray v. Boston etc. Railroad. 663
When, instead of attendant physical facts and circumstances,
the evidence consists of a declaration, made by a person at the
time of the event or transaction which is under investigation, its
admission depends upon a similar principle. If its materiality
or relevancy is conceded, the question whether it is a part of
the res gestae arises; that is, whether it occurred in such inti-
mate connection with the event in issue as to constitute it in
a reasonable and proper sense a part thereof. If it does, it is
in its probative bearing superior to mere hearsay remarks, and
may for that reason be admissible. "Its connection with the
act gives the declaration greater importance than what is due
to the mere assertion of a fact by a stranger, or a declaration
by the party himself at another time. It is part of the transac-
tion, and may be given in evidence in the same manner as any
other fact" : Hadley v. Carter, 8 N". H. 40, 43. "\YlieTe evi-
dence of an act done by a party is admissible, his declarations,
made at the time, having a tendency to elucidate or give a
character to the act, and which may derive a degree of credit
from the act itself, are also admissible, as a part of the res ges-
tae": Sessions v. Little, 9 N. H. 271, 276.
After approving the statement quoted above from Hadley v.
Carter, 8 X. H. 40, 43, the court in Wiggin v. Plumer, 31 N.
H. 251, 267, state the principle as follows: "When a fact is
offered in evidence, the whole transaction, if it consists of many
particulars, may and ought to be proved. Every additional
circumstance proved may vary the effect of the evidence, may
neutralize it, or give it point. What is then said by the parties,
and what is said by others to them, relative to the subject of the
transaction is a part of the transaction itself. It is admissible
on the same principle that every other part of it is, that the
whole matter may be seen by the jury. ^** . . . . Contempo-
raneous, but otherwise unconnected, conversation is rejected, on
the same ground as other unconnected facts. If the statement
offered in evidence does not tend to elucidate or give character
to the acts proved, it is to be rejected. If it is upon the same
subject and relative to the act in proof, it should be received" :
See, also, to the same effect, i\Ialiurin v. Bellows, 14 IST. H. 209,
212; Tenney v. Evans, 14 N". H. 343, 350, 40 Am. Dec. 194;
Morrill v. Foster, 32 J^. H. 358.
But while admitting that the foregoing statements of the law
are substantially correct, the defendant insists that a declara-
tion of the character received in this case, in order to be ad-
missible, must have been strictly and literally contemporaneous
GG4 American State Reports, Vol. 101. [N. H.
with the fact it was intended to elucidate or explain. In other
words, it is in effect conceded that if, while the car wheels
were passing over Baker's legs, he had exclaimed, "I fell over
these old planks," that statement would have been admissible
as a part of the res gestae; but it is claimed that, although
made within two minutes after the actual infliction of the in-
jury, while he was lying between the planks groaning on ac-
count of the pain, and while no substantial change had occurred
in the attendant circumstances, it is not admisssible, because
the accident was tlien a past event and the statement a mere
narrative. But this technical refinement is not based upon a
reasonable view of the principle involved. No satisfactory rea-
son is assigned for the distinction suggested. If the statement
of a party made while a serious injury is being inflicted upon
him is regarded as an evidentiary fact throwing light upon
the manner of the occurrence, why does not the same statement
made immediately after the principal event, as an intimately
connected and natural result or detail thereof, in the presence
of all the physical facts of the accident, constitute an equally
admissible part of the proof? Why may it not be as much a
part of tlie res gestae as the fact that the declarant is found
at the same time lying in a place and position indicating the
manner of the accident? His position as well as his declara-
tion may be to some extent subject to his volition. If the very
short period of two minutes after a man's legs liave been severed
from his body in a railroad accident prevents his dcckiration
then made from being deemed a part of the transaction, it is
diflicult to understand why his position, which may be as much
subject to his intelligent control during that brief and trying
interval of time as his power of verbal communication, should
be regarded as a competent evidentiary fact explaining the man-
ner of the accident. The fact is, that both his declaration and
his position may be under the circumstances credible and ad-
missible evidence, for very similar reasons; and that to exclude
the evidence in the one case, because it may be fabricated,
•'•' would furnish a reason for its exclusion in the other. The
possibility of its being unreliable would seem to relate to tl:e
weight, rather than to the admissibility, of the evidence. That
the doctrine of exact coincidence in such cases is not followed
in this state, is plainly indicated in Cavorno v. Jones 61 N.
H. G23, (124, in which it was decided that, in trespass for as-
sault and battery, threats to do the plaintilf bodily harm, made
Feb. 1903.] Murray v. Boston etc. Railroad. 665
by the defendant so soon after the alleged assault as to con-
stitute a part of the transaction, are competent. Nor do any
of the decisions in this jurisdiction warrant the assumption
that the defendant's theory has been adopted here. See cases
above cited.
Cases in other states and in England, it must be admitted,
are not in accord. Some adopt an unreasonably strict construc-
tion of the rule (Regina v. Bedingfield, 14 Cox C. C. 341;
State V. Davidson, 30 Vt. 377, 73 Am. Dec. 312; Eastman
V. Boston etc. R. R. Co., 165 Mass. 342, 43 N. E. 115; Louis-
ville etc. R. R. Co. v. Pearson, 97 Ala. 211, 215, 12 South.
176; Cleveland etc. R. R. Co. v. Mara, 26 Ohio St. 185) ; others
admit statements only remotely connected with the principal
fact (Insurance Co. v. Mosly, S^Vall. 397, 19 L. ed. 437; Com-
monwealth V. M'Pike, 3 Cush. 181, 50 Am. Dec. 727; Craig
V. State, 30 Tex. App. 619, 18 S. W. 297) ; while others adopt
what seems to be the more rational view, as stated in Common-
wealth V. Hackett, 2 Allen, 136, 140, that statements are ad-
missible when "it appears that they were uttered after the lapse
of so brief an interval, and in such connection with the prin-
cipal transaction, as to form a legitimate part of it, and to
receive credit and support as one of the circumstances which
accompanied and illustrated the main fact" : Rawson v. Haigh,
2 Bing. 99 ; Rouch v. Great Western R. Co., 1 Q. B. 51 ; Regina
v. Lunny, 6 Cox C. C. 477; Waldele v. New York Cent. etc.
R. R. Co., 95 N. Y. 274, 47 Am. Rep. 41; Martin v. New
York etc. R. R. Co., 103 N. y. 62G, 9 N. E. 505; Estell v.
State, 51 N. J. L. 182, 17 Atl. 118; Mayes v. State, 64 Miss.
329, 1 South. 733, 60 Am. Rep. 58; Pittsburg etc. Ry. Co. v.
AVright, 80 Ind. 182; Wood v. State, 92 Ind. 269; Kcvcs v.
State, 122 Ind. 527, 23 X. E. 1097; Chicago etc. Ry. Co. v.
Becker, 128 111. 545, 15 Am. St. Rep. 144, 21^ N. E. 524; Lam-
bert V. People, 29 Mich. 71; People v. Gage, 62 Mich. 271,
4 Am. St. Rep. 854, 28 N. W. 835; People v. O'Brien, 92
:Mich. 17, 52 N. W. 84; Christiansen v. Pioneer Furniture Co.,
92 Wis. 649, QQ> N. W. 699; McMurrin v. Rigby, 80 Iowa, 322,
45 N. W. 877; Fish v. Illinois Cent. Ry. Co., 9G Iowa, 702,
65 N. W. 995; State v. Rider, 95 Mo. 474, 8 S. V. 723; People
V. Yernon, 35 Cal. 49, 95 Am. Dec. 49. See. also. Professor
Thayer's article on Bedingfield's Case, 14 Am. Law. Rev. 817,
15 Am. Law Rev. 71.
GGQ American State Reports, Vol. 101. [N. H.
The seriousness of the injury, the character of the accident,
and the surrounding physical circumstances and results of the
occurrence, attending the declaration as well as the principal
fact, are neceiisary matters for consideration in the determina-
tion of the question of the admissibility of the declaration.
When a person receives a sudden injury, it is natural for him,
if in the possession of his faculties, to state at once how it
happened. Metaphorically ^® it may be said, the act speaks
through him and discloses its character. It is as if it were a
part of the a<;t itself. This view of the common experience of
mankind shows that, if the declaration has that character, it
possesses an important element of reliability and significance
which is foreign to narrative remarks made so long after the
event as to derive directly no probative force from it, and that
it should be admitted like any other material fact or evidentiary
detail. If this principle of evidence may be difficult of appli-
cation in practice, its soundness is not thereby weakened. A
disciiminating observance of it will promote the successful dis-
covery of truth, which, without its aid, is often involved in
great obscurity.
It IS not contended that Baker's statement was not relevant,
or that it did not tend to show how the accident happened;
that is, the proximate cause of it. It was not mere hearsay,
depending alone for its truthfulness upon the credibility of an
unsworn witness. It was directly connected in point of time
with the main fact, and was made while Baker was in the
place where the force of the collision presumably threw him,
and in view of all the surrounding physical facts connected
with his misfortune. It cannot be said, therefore, as a matter
of law, that his remark did not derive credit from the occur-
rence with which it was so intimately connected, or that it
was not in a reasonable sense a part thereof and admissible
in evidence. Although in form it was a narrative, it could
not be excluded for that reason alone, if in other respects it
was competent. Nor does the fact that it was made in answer to
the witness' question deprive it of its character as a part of the
res gestae: Fish v. Illinois Cent. By. Co., 9G Iowa, 702, 707, G5
N. W. 995; Crookham v. State, 5 W. Ya. 510. To exclude it
"would be practically to say that no declaration or statement,
however near to the principal fact, or however important and
material as giving to it color and significance, could ever be ad-
mitted in i>roof": Commonwealth v. Ilackett, 2 Allen, 140. IIow
Feb. 1903.] Murray v. Boston etc. Railroad.- 667
far the question of the admissibility of such testimony may be
determined by the trial court as a matter of discretion, it is un-
necessary in this case to decide; for the exception to its admis-
sion presents no error. In Commonwealth v. M'Pike, 3 Cush.
181, 184, 50 Am. Dec. 727, it is said that "in the admission
of testimony of this character^ much must be left to the exer-
cise of the sound discretion of the presiding justice"; while
the contrary of that proposition seems to be maintained in Lund
V. Tyngsborough, 9 Cush. 36, 41.
The defendant insists that the motion for a nonsuit should
have been granted, because Baker must be held to have assumed
the risk in consequence of which he was injured. This con-
tention in effect concedes that the defendant was negligent in
permitting a ^'^ jigger-stand to be where this one was, and that
it was an operating cause of the accident; but it is claimed
the plaintiff cannot recover, for the reason that the danger in-
curred was one of the incidents of his intestate's employment.
If the latter .did not know of the existence of the jigger-stand
near the switch which he was about to operate, or if, in the ex-
ercise of ordinary care in the performance of his duties, he
was not chargeable with such knowledge, he cannot be held
responsible for consequences resulting from his failure to take
such precautions for his safety as a knowledge of the danger
would have suggested to a man of ordinary prudence; other-
wise he is precluded by the doctrine of the assumption of risk.
"The plaintiff was bound to prove that the special danger caus-
ing the injury was not known to [Baker], and in the exercise
of ordinary care by him would not have come to his knowledge" :
Burnham v. Concord etc. R. R. Co., 68 N. H. 567, 44 Atl. 750.
If the fact that the accident happened is not alone sufficient
evidence of the injured party's want of knowledge of the ex-
istence of the defective appliance causing it, or of his exercise
of due care (Huntress v. Boston etc. R. R. Co., 66 N. H.
185, 49 Am. St. Rep. 600, 34 Atl. 154; Gahagan v. Boston etc.
R. R. Co., 70 N. H. 441, 50 Atl. 146, 55 L. R. A. 426 ; Wald-
ron V. Boston etc. R. R. Co., 71 N. H. 362, 52 Atl. 443), the
manner of its occurrence, when that is in part disclosed by
the evidence, may warrant an inference in his favor upon these
points. In this case the plaintiff's evidence (which, upon this
motion, is to be taken as true) sliowed that it was Baker's duty
to set the switch which was near the jigger-stand. This stand
consisted of two planks, about fifteen feet long, placed at right
GG3 American State Eeports^ Vol. 101. [N. H.
angles with the track. When nearly opposite this place, at
about 2 o'clock in the morning, Baker, who was on a car, went
down over the side of the car to set the switch. The night
was a dark one. Very soon thereafter he made an outcry, the
car wheels passed over his legs, and he at once said he stumbled
over the planks. His position immediately after the accident,
the blood on tlie rail between the planks, as one witness testi-
fied, the pieces of his broken lantern near him, corroborated and
supported the statement that he stumbled over the planks. If
he had known that there was a jigger-stand at that place, he
would have known that some care was necessary to avoid falling
over it in the performance of his work. It is hardly conceiv-
able that he would have knowingly encountered that danger —
that is, knowing the obstruction was directly in his way, he
would have stumbled over it. The act of stumbling usually
implies the existence of an object in a traveler's way of which
he was at the time unconscious. It is no answer to say that
Baker must have known of this obstruction because he had been
over the road as a brakeman ten or twelve times within two
months of the accident; for it appeared that men who worked
with him during that time ^^ had not noticed it before the
accident. It was not so conspicuous as necessarily to attract
the attention of brakemen. It is at least apparent that fair-
minded men might reasonably draw the inference from the evi-
dence (Hardy v. Boston etc. E. R. Co., G8 N. H. 523, 536, 41
Atl. 179; Wbitcher v. Boston etc. E. E. Co., 70 N. li. 242,
245, 46 Atl. 740) that Baker did not know that his approach
to the switch lay over a jigger-stand.
But it is urged that he ought to have known it. His ex-
perience for many years as a freight brakeman must have af-
forded him the information that such stands are of frequent
occurrence on the line of a railroad, and that they are neces-
sary appliances at certain pionts for the use of the scciionmen.
But while it appeared from the cross-examination of the plain-
tiff's witnesses that these appliances are numerous on lines of
road on which Baker had worked, it also ap])eared that they
are seldom placed near a switch and usually lead into carhouscs,
which would afford some notice of their existence. Upon the
evidence, it might be found that a brakeman ought to know
that in the vicinity of a carhouse there would in all probabil-
ity be a jigger-stand; and that its existence near a switch and
away from a carhouse was so unusual as to make it unreason-
Feb. 1903.] Mueray v. Boston etc. Railroad 669
able to say that a brakeman ought to anticipate such an arrange-
ment at every switcliing point. It was not unreasonable for the
jury to infer from the evidence that men of ordinary prudence
in Baker's position, and possessing his knowledge of the means
employed in the business of railroading, would not anticipate
the existence of a jigger-stand at this particular point. If upon
this subject fair-minded men might differ, the question should
be submitted to the jury. It does not appear that Baker ought
to have anticipated the peculiar obstruction which caused him
to stumble.
The furtlier contention is made that there is no evidence that
Baker exercised reasonable care in the performance of his work
at the time of the accident — a fact the plaintiff was bound to
prove by competent evidence. But it is not necessary that the
evidence should be direct ; the fact may be inferred from circum-
stances; and, in the absence of direct proof, the question is
whether the circumstances legitimately warrant an inference of
the fact: Ilutchins v. Macomber, 68 N. H. 473, 44 Atl. 602;
Burnham v. Concord R. R. Co., 69 N. II. 280, 282, 283, 45
Atl. 563. When Baker was last seen before the accident, he
was getting down over the side of the car nearly opposite the
switch, for the purpose, evidently, of setting the switch; he
was attending to his duty. He had had extensive experience
as a brakeman, and understood perfectly how to perform his
work with reasonable safety under ordinary circumstances. The
time that elapsed after his lantern disappeared over tlie side
of the car until he cried out was very brief. What he was doing
*^ during that short space of time is not a mere matter of con-
jecture. It was competent for the jury to infer that he was
proceeding to reach the switch in the way an experienced brake-
man would adopt under tlie circumstances, and that sucli a v>ay
would be a reasonably prudent one— not the opposite. The
evidence was sufficient to warrant tliat finding, in the absence
of any evidence tending to show tliat he was negligent: Ilutchins
v. Macomber, 68 N. H. 473, 44 Atl. 602.
As there is no contention that the evidence did not warrant
a finding of the defendant's negligence in permitting the jigger-
stand to be near the switch in question^ no error is apparent in
the trial, and the verdict must stand.
Exception overruled.
Chase, J., was absent; the others concurred.
G70 American State REroRTS, Vol. 101. [N. H.
Declarations by One Injured in an accident, as to its cause, made
at the place and within a few minutes after it occurred, are admis-
sible as part of the res gestae: International etc. Ey. Co. v. Ander-
son, 82 Tex. 516, 27 Am. St. Kep. 902, 17 S. W. 1039; Texas etc. Ry.
Co. V. Eobertson, 82 Tex. 657, 27 Am. St. Rep. 929, 17 S. W. 1041;
Savannah etc. Ey. Co. v. Holland, 82 Ga. 257, 14 Am. St. Rep. 158,
10 S. E. 200; Pennsylvania E. R. Co. v. Lyons, 129 Pa, St. 113, 15
Am. St. Rep. 701, 18 Atl. 759; Louisville etc. Ry. Co. v. Buck, 116
Ind. 566, 9 Am. St. Rep. 883, 19 N. E. 453, 2 L. R. A. 520; Little
Rock etc. Ey. Co. v. Levcrett, 48 Ark. 333, 3 Am. St. Rep. 230, 3
S. W. 50. But see Chicago etc. Ry. Co. v. Becker, 128 111. 545, 15
Am. St. Rep. 144, 21 N. E. 524; and consult the monographic note
to People V. Vernon, 95 Am. Dec. 51-76; Keefcr v. Pacific Mut. Life
Ins. Co., 201 Pa. St. 448, 88 Am. St. Rep. 822, 51 Atl. 366; Honey-
cutt V. State, 42 Tex. Cr. Rep. 129, 96 Am. St. Rep. 797, 57 S. W.
806; Chapman v. State, 43 Tex. Cr. Rep. S'28, 96 Am. St. Rep. 874,
65 S. W. 1098.
The Doctrine of Assyniptlon of Risl-ft will he found discussed in the
monographic notes to Houston etc. Rv. Co. v. De Walt. 97 Am. St.
Rep. 886-896; Brazil Block Coal Co. v. Gibson, 98 Am. St. Rep. 314-
322.
IIORAN V. BYRXES.
[72 N. H. 93, 54 Atl. 945.]
CONSTITUTIONAL LAW— Spite Fences. — A statute dccLir-
ing that any structure in the nature of a fence unnecessarily ex-
ceeding five feet in height and erected for the purpose of annoying
the owner or occupant of adjoining premises shall be deemed a
private nuisance, and providing that an owner or occupant thereby
injured in the comfort or enjoyment of his estate may maintain an
action for tlie damages sustained, and designed to prohibit an un-
necessary and unreasonable use of land by the owner thereof, is
valid, and not an unconstitutional interference with the rights of
private properly, (pp. 678, 679.)
EVIDE^7C?E^Witnesses — Failure to Deny Statement.— The
fact that a witness did not deny a statement made in her presence
at a former trial and attributed to her is incompetent as tending to
establish the falsity of her testimony in denying such statement
given at a subsequent trial, (p. 680.)
P. II. Sullivan, for the plaintiff.
BrowTi^ Jones & Warren, for the defendant.
»-* PARSOXS, C. J. "Any fence or otlier structure in the
nature of a fence, unnecessarily exceeding five feet in height,
erected or maintained for the purpose of annoying the owners
or occupants of adjoining property, shall be deemed a private
nuisance.
April, 1903.] Horan v. Byrnes. 671
"Any owner or occupant, injured either in his comfort or the
enjoyment of his estate by such nuisance, may have an action of
tort for the damage sustained thereby.
"If the plaintiff recovers judgment in the action, the defend-
ant shall cause the removal of the nuisance within thirty days
from the date of the judgment, and for each day he shall permit
the nuisance to remain after the expiration of said thirty days
he shall incur a penalty of ten dollars for the use of the party
injured": Pub. Stats., c. 143, sees. 28-30.
The act forbids the use by one land owner of his land for the
unnecessary erection of a fence exceeding five feet in height,
when the purpose of such unnecessary height is the annoyance
of the adjoining owner or occupant, if such unnecessary height
injures the adjoining owner in his comfort or the enjoyment of
his estate. The claim of the defendant in support of his motion
for a nonsuit, that the statute is unconstitutional, raises the
question whether ®^ the statutory prohibition is an interfer-
ence with the defendant's "natural, essential, and inherent"
right of "acquiring, possessing, and protecting property," or
deprives him of that protection in its enjoyment, which is the
right of "every member of the community" : Bill of Rights,
arts. 2, 12.
"The structure here referred to is one designed to take the
place of a fence in the ordinary meaning of the term — a struc-
ture erected upon or near the dividing line between adjoining
owners for the purpose of separating the occupancy of their
lands": Lovell v. Xoyes, 69 X. H. 263, 46 Atl. 25; Spaulding
V. Smith, 162 Mass. 543, 39 N. E. 189. The correlative right
and duty of adjoining owners and occupants of lands at the
common boundary between them is matter of general and public
concern. The existence or not of an obligation to fence, what
should constitute performance, and what liabilities should follow
from nonperformance, are matters as to which the establishment
of a definite rule plainly promotes the public peace and comfort
and the security of property rights in real estate. All these
questions were early settled by the legislature. It prescribed
the obligation to fence as between adjoining owners, provided
a method for the enforcement of the duty, declared tlie legal
liability for failure to fence, and defined a sufficient fence.
There was legislation upon the subject in 1687, 1692, 1743,
and 1792 (1 X. H. Prov. Laws, Batch, ed.. 200; 3 Prov. Papers,
176; Laws 1090-1725, p. 117; Laws, ed. 1761, p. 225; Act Feb.
(•73 American State Keports^ Vol. 101. [N. H.
8, 1791, Laws, ed. 1797, p. 331); while in 1842 (Eev. Stats.,
c. 136, sec. 4) the requirements of a sufficient fence were pre-
scribed. Such a fence need not be more than four feet high :
Pub. Stats., c. 143, sec. 5. Although these provisions in one
sense imposed a burden upon real estate ownership, the pur-
pose of tlie legislature, as shown by the titles of the earlier acts
"for the regulation of cattle, cornfields, and fences," was to
make provision in reference to the control of domestic animals —
to regulate the use and keeping of such property": Morey v.
Brown, 43 N. H. 373, 375. No one has ever been required to
fence his land who does not improve it, or who "lays it in
common": Pub. Stats., c. 143, sec. 14. The theory of these stat-
utes is simply tliat where adjoining owners each desire the
exclusive use of their land, the expense of effecting the mutual
purpose should be equally divided between them: Pub. Stats.,
c. 143, sec. 1.
The constitutional objection made to the present statute raises
the question, if it appears that the statute is an interference
with the defendant's property right, whether the interference
is or not one wliieh the legislature might properly make els a
regulation of the use of property. The constitutionality of
sin;ilar statutes b.as been uplseld upon tlie latter ground, as
being merely a sjuall limitation ^® of existing riglits incident
to properly, which under tiie police j)Ower may be imposed for
the sake of preventing a manifest evil. "It is liard,'' it has
been sai'l, "to imagine a more insignificant curtaihnent of the
riglits of properiy": Eidcout v. Knox, 148 3Iass. 3()8, 372, 373,
12 Am. ^^i. Ecp. 5G0, ]9 X. E. 390, 2 L. E. A. 81 ; Karasok v.
Peier, 22 Wash. 419, Gl Pac. 33, 50 L. E. A. 3 15; W(>.4crn
etc. Co. V. Knickerbocker, 103 Cal. Ill, 37 Pac. 192. Simihir
statutes in Maine, Vermont and Connecticut have been before
the courts, but it has not been suggested tliat tlie power of
the legislature to ado])t them has b. en attacked in those states:
Lord v. Langdon, 91 :Me. 221, 39 Atl. 552; Ilailtison v. White,
AC> Conn. lOG; Gallagher v. Dodge, 48 Conn. 387, 40 Am. Eep.
181-183, nolo.
The i)n;sent statute was passed in 1887: Laws 1887, c. 91.
Li Hunt v. Coggin, GG X. 11. 140, 20 Atl. 250. tlie verdict
was for the defendant ; and in Iloran v. Byrnes, 70 X. IL 531, 19
Atl. 5G9. tlie defendant waived any ohjeetion to the statute
upon tiiis urouruL In Lovell v. Xoves. G9 X. 11. 2G:'). -JG Atl.
25, the que.-tion was whether abiiilding wa? within the
April, 1903.] Horan v. Byrnes. G73
terms of the statute. The constitutional question is now pre-
sented for the first time.
It is objected in answer to the argument that statutes like the
present are within the constitutional exercise of the police power,
involving for the general good some slight limitation of exist-
ing property rights, that if one incident of the property right
in real estate is the right to use it maliciously for the solo
purpose of injuring another, it is as much an invasion of the
right to take it from a small portion as from the whole of
one's property; and that the matter in question concerns private
individuals and not the public in general, and hence does not
come within the police power: State v. Wliite, 64 N. H. 48,
50, 5 Atl. 828. It may be thought these objections are success-
fully answered in the cases cited, or that, if not there answered,
a satisfactory answer can be found. But a discussion of these
objections does not reach the fundamental question in the case.
"The statute was designed to prevent an act the sole effect of
which would be to annoy or injure another": Lovcll v. ISToyes,
C9 ^". H. 263, 46 Atl. ^25. The primary question, therefore,
is whether one's riglit to use property solely to injure another
is a part of his property right in real estate, which is so pro-
tected by the constitution that the prohibition of such use is
not within the general power of legislation "for the benefit and
welfare of this state and for the governing and ordering
thereof": Const., art. 5. Upon the question whether a fence
on or near the division line between adjoining land owners,
maliciously built to an unreasonable height for the sole pur-
pose of annoying and injuring the adjoining owner or occupant,
is a nuisance which can in the absence of statutory authority
be abated by an injunction, the courts are in conflict: Letts v.
^"^ V. Kessler. 54 Oliio St. 73, 42 N. E. 765, 40 L. E. A. 177,
answers the question in the negative, while an opposite con-
clusion is reached in Micliigan: Burke v. Smith, 69 Mich. 380,
37 N. W. 838; Flaherty v. Moran, 81 Mich. 52, 21 Am. St.
Rep. 510, 45 N. W. 381, 8 L. R. A. 183; Kirkwood v. Finegan,
95 :\Iich. 5-13, 55 X. W. 457. In Ridcout v. Knox, 148 M"ass!
368, 12 Am. St. Rep. 560, 19 K E. 390, 2 L. R. A. 81, and
Karasek v. Peier, 22 Wash. 419, 61 Pac. 33, 50 L. R. A.' 345,
cases in wliich the |;ov,er of the legislature to enact a statute
similar to that under consideration is attacked and upheld, it
is conceded "that to a largo extent the power to use one's prop-
erty malevolently, in any way which would be lawful for other
Am. St. Rep., Vol. 101—43
G74 American State Keports, Vol. 101. [N. H.
ends, is an incident of property which cannot be taken away
even by legislation": Hideout v. Knox, 148 Mass. 372, 12 Am,
St. Rep. 560, 19 N. E. 392, 2 L. R. A. 81.
The conclusion that a land owner's property right in real
estate includes the right to use it solely for the injury and
annoyance of his neighbor, without intending to subserve any
useful purpose of his own, is "based upon a narrow view of
the effect of the land titles." and is reached "by the strict en-
forcement of a technical rule of ownership briefly expressed in
an ancient maxim," Cujus est solum, ejus est usque ad coelum.
The courts of this state have had in some respects, at least, a
different understanding of the elements of land ownership. As
to the use of land in the control of surface water, the enjoy-
ment of water percolating beneath the surface, and the use
generally that may be rightfully made of real estate by the
owner or occupant, the test has been considered to be not merely
whether tlie act was an exercise of dominion on the land re-
gardless of the injury to other land, but the reasonableness of
the use under all the circumstances, including the necessity and
advantage to one and the unavoidable injury to the other:
Franklin v. Durgee, 71 N. H. 186, 51 Atl. 911, 58 L. R. A.
112; Ladd v. Brick Co., 68 X. H. 185, 37 Atl. 10-11; Swett
V. Cutts, 50 N. H. 439, 9 Am. Rep. 276; Bassett v. Salisbury
Mfg. Co., 43 N. H. 569, 577, 82 Am. Dec. 179. It has been
paid that the rule of absolute dominion is easier of applica-
tion: Chase V. Silverstone, 62 Me. 175, 183, 16 Am. Rep. 419.
This view, however, docs not seem to be uplield by the ditfi-
culties met in its application in reference to surface waters :
Sc^ Franklin v. Durgee, 71 N. H. 186, 189, 51 Atl. 911, 58
L. R. A. 112. But however that may be, difficulty in ad-
ministration is not a suflicient reason for the denial of justice.
Cases like Chatfield v. Wilson, 28 Vt. 49, and Phelps v. Xowlen,
72 N. Y. 39, 28 Am. Rep. 93, in which the principle of the
maxim relied upon is applied to waters in the soil, are not au-
thority liere, where a contrary view is entertained: Franklin v.
Durgee, 71 X. H. 186, 189, 51 Atl. 911, 58 L. R. A. 112;
Bassett v. Salisbury Mfg. Co., 43 N. II. 569, 577, 82 Am. Dec.
179.
Aside from the authorities in cases in which the control of
waters was in question, the leading ca'^e appears to be ]\rahan v.
Brown, 13 Wend. 261, 28 Am. Dec. 461. Here, although tho
plaintiff alleged that the fence complained of was erected sololv
to injure her, the decision is upon the ground that by the erec-
April, 1903.] Horan v. Byrnes. 675
tion of the fence the plaintiff ®® is deprived of no right, but
is merely prevented from acquiring a right. If by enjoyment
of light and air across his neighbor's land for the prescriptive
period a land owner could acquire a right to such enjoyment,
the building of a fence as an assertion of a contrary right and
to prevent the acquiring of such easement would be a building
for a necessary and useful purpose, and not for the sole pur-
pose of annoying another. The case standing upon a view of
the effect of nonuser of a right to build, now generally aban-
doned in this country (Washburn on Easements^ 490, 497, 498),
is not of value in the present discussion. The argument gener-
ally is, that the motive with which one does an act otherwise
lawful is immaterial; and hence, as it must be conceded that
a land owner has the right to build on his land as he conceives
may best subserve his interests, the act lawful for a useful pur-
pose is not made unlawful and a nuisance merely by the intent
accompanying it.
Whether the first proposition is entirely true may perhaps be
doubted. Cases cited to support the proposition (Walker v.
Cronin, 107 Mass. 555 ; Phelps v. Nowlen, 72 N". Y. 39, 28 Am.
Eep. 93) do not support it in its entirety: See Chesley v. King,
74 Me. 164, 43 Am. Eep. 569. In Houston v. Laffee, 46 N. H.
505, which was trespass for cutting an aqueduct pipe main-
tained by the plaintiff upon the defendant's land by a parol
license, it was held that if the cutting of the pipe was done
simply for the purpose of putting an end to the license, and
without any malice or intentional wrong, the defendant would
not be liable; but if the pipe was cut "wantonly, unnecessarily,
maliciously, and with a view .... to injure the plaintiff," the
defendant would be liable. It is true that an act which one has
the right to do under all circumstances, like the bringing of a
suit upon a valid claim (Friel v. Piumer, 69 N. H. 498, 76 Am.
St. Eep. 190, 43 Atl. 618), cannot be made actionable by the
motive which accompanies it. But as applied to the use of real
estate the argument begs the question, which is whether the
enjoyment of real estate includes the right to use it solely to
injure another. Because when employed for a useful purpose
such use may rightfully injure another, it does not follow that
the same use for a wrongful purpose may also rightfully injure
another, except upon the theory of absolute dominion, for the
character of the use is an element of the right.
"As a general proposition, it is safe to say that the owner of
land has a right to make a reasonable use of his property; and
C7G American State Keports, Vol. 101. [N". H.
that right extends as well to an unlimited distance above the
earth's surface as to an unlimited distance below. lie may not
only dig for a foundation and a cellar as deep as he pleases^ but
he may erect his building as high as he pleases into the air,
subject all the time, of course, to a proper application of the
doctrine contained in the maxim, 'Sic utere tuo ut alienum non
lajdas.' The erection '*'** and maintenance of buildings for
habitation or business is a customary and reasonable use of land.
Of course, the land owner, in making such erections, must be
held to the exercise of all due care against infringing the legal
rights of others, to be detennincd by the nature of the rights
and interests to be alTected, and all the circumstances of each
particular case" : Ladd, J., in Garland v. Towue, 55 JN . 11, 55,
5S, 20 Am. Rep. IGi.
"Property in land must be considered, for many purposes, not
as an absolute, unrestricted dominion, but as an aggregation of
qualified privileges, the limits of which are prescribed by the
equality of riglits and the correlation of rights and obligations
necessary for the highest enjoyment of land by the entire com-
munity of proprietors The soil is often called property,
and this use of language is sufliciently accurate for some pur-
poses. But the proposition that the soil is property conveys a
very imperfect idea of the numerous and variously limited rights
comprised in landed estate; and it is sometimes necessary to
remember that the name of property belongs to some of tho
essential proprietary rights vested in the person called tlie owner
of the soil So these proprietary riglits, which are the
only valuable ingredients of a land owners ])roperty, may be
taken from liini, without an asportation or adverse personal oc-
cupation of that portion of the earth which is his in the limited
sense of being the subject of certain legally reco.gnized propri-
etary rights which he may exercise for a short time Uiie
of Eaton's proprietary riglits was the correlative of R.'s duty
of abstaining from sucli a use of air and water, and from such
an intorfereuce with their quality and circulation, as would be
unreasonable and injurious to the enjoyment of Eaton's farm":
Thompson v. Androscoggin Co., 54 X. H, 545, 551, 553, 554.
"Excavations maliciously made in one's own land, with a view
to destroy a spring or well in his neighbor's land, could not be
regarded as reasonable" : Swett v. Cutis, 50 X. H, 439, 4 17, 9
Am. Eep. 2TG.
"If a man lias no rig^t to dig a hole upon his pr(>niises, not
for any benefit to himself or his premises, but for the express
April, 1903.] Horan v. Byrnes. 677
purpose of destroying his neighbor's spring, why can he be per-
mitted to shut out light and air from his neighbor's windows
maliciously and without profit or benefit to himself? By anal-
ogy, it seems to me that the same principle applies in both
oases, and that the law will interpose and prevent the wanton
injury in both cases It must be remembered that no
man has a legal right to make a malicious use of his property
.... for the avowed purpose of damaging his neighbor. To
hold otherwise would make the law a convenient engine in cases
like the present to injure and destroy the peace and comfort,
and to damage the property, of one's neighbor, ^^^ for no other
than a wicked purpose, which in itself is or ought to be un-
lawful. The right to do this cannot, in an enlightened coun-
try exist either in the use of property or in any way or manner.
.... The right to breathe the air, and to enjoy the sunshine,
is a natural one; and no man can pollute the atmosphere, or
shut out tlie light of heaven, for no better reason than that the
situation of his property is such tliat he is given the opportunity
of so doing, and wishes to gratify his spite and malice toward his
neighbor"": Morse, J., in Burke v. Smith, 69 Mich. 380, 37 N.
W. 838, approved and unanimously adopted in Flaherty v.
Moran, 81 Mich. 52, 21 Am. St. Eep. 510, 45 N. W. 381, 8
L. E. A, 183, above cited.
''While one, may in general put his property to any use he
pleases not in itself unlawful, his neighbor has the same right
to the undisturbed enjoyment of his adjoining property
What standard does the law provide? .... Whatever may be
the law in other jurisdictions, it must be regarded as settled in
this state that the test is the reasonableness or unreasonableness
of the busiue.-s in question under all the circumstances" : Ladd
V. Granite State Brick Co., 68 X. 11. 185, 186, 37 Atl. 1041.
"The common-law right of the ownersliip of land, in its rela-
tionship to the control of surface water, as understood by the
courts of this state for many years, does not sanction or au-
thorize practical injustice to one land owner by tlie arbitrary and
unreasonable exercise of the right of dominion bv another"
(Franklin v. Durgee, 71 X. II. 186, 51 Atl. 911, 58 L. E. A.
112), but makes the test of the right the reasonableness of the
use under all the circumstances. In such case the purpose of
the use, wb.ether understood by the land owner to be necessary
or useful to himself, or merely intended to harm anotlior. m.ay
be decisive upon the question of right. It cannot be justly con-
tended that a purely malicious use is a reasonable use. The
C78 American State Eeports, Vol. 101. [N. 11.
question of reasonableness depends upon all the circumstances
— ^the advantage and profit to one of the use attacked, and the
unavoidable injury to the other. Wliere the only advantage to
one is the pleasure of injuring another, there remains no foun-
dation upon which it can be determined that the disturbance of
the other in the lawful enjoyment of his estate is reasonable or
necessary. Tliere is no sound ground upon which a distinction
can be made against the plaintiff's right to use his land for the
enjoyment of the air and light which naturally come upon it,
in favor of his right to use it to enjoy the waters which naturally
flow upon or under it, except the fact that the use of land for
buildings necessarily cuts off air and light from the adjoining
estate. The fact that the improvement of real estate in this
way for a useful purpose, universallv conceded to be reasonable,
may affect the adjoining owner's enjoyment of his estate to the
same extent as a like act done solely to injure the other, is not
a sufficient ^^^ reason for distinguishing the right to build upon
the surface from the riglit to dig below it or to control the sur-
face itself. Jurisdictions which reject the doctrine of reason-
able necessity, reasonable care, and reasonable use, which "pre-
vail in this state in a liberal form, on a broad basis of general
principle" (Haley v. Colcord, 59 N. H. 7, 47 Am. Kep. 176),
as applied to the ownership of real estate, in favor of the prin-
ciple of absolute dominion, may properly consider a malicious
motive immaterial upon the rightfulness of a particular use;
but in this state, to do so would be to reject the principle an-
nounced in Bassjtt v. Salisbury Mfg. Co., 43 N. 11. 509, 82 Am.
Dec. 179, and rei)eatedly reaflirmed during tlie last forty years.
It is to be conceded that the maxim, ''Sic utere tuo ut alienum
non Uedas,"' is to be applied as forbidding injury, not merely to
the property, Init to the right of another: Ladd v. Granite State
Brick Co., 08 X. 11. 185, 37 Atl. 1041; Pittsburg etc. l?y. Co.
v. Bingham, 29 Ohio St. 364 ; I^tts v. Kessler, 54 Ohio St. 73,
42 X. E. 705, 40 L. H. A. 177; Bonomi v. Backhouse, El. B.
& E. 022, 0-13; JelMes v. Williams, 5 Ex. 792. But the land
owner's right in the enjoyment of his estate being that of rea-
sonable use merely, there attaches at once to each the correlative
riirlit not to be disturbed by the malicious, and lienee unreason-
able, use made by another. To hold tb.at a right is infringed
because, bv the noxious use made Ity another, the air coming
upon a land owner's premises is made more or less injurious,
and to denv the invasion of a right l)y an unreasonable use
which shuts off air and light entirely, is an attempt to bound a
April, 1903.] HoRAN V. Byrnes. 679
right inherent and essential to the common enjoyment of prop-
erty by the limitations of an ancient form of action. An un-
reasonable use of one estate may constitute a nuisance by ita
diminution of the right of enjoyment of another, without fur-
nishing all the elements necessary to maintain an action quare
rlausum f regit; though in particular cases it may be said that
no right is invaded unless something comes from the one lot
to the other : Lane v. Concord, 70 N. H. 485, 488, 489, 85 Am.
St. Eep. 643, 49 Atl. 687 ; Thompson v. Androscoggin Co., 54
N. H. 545, 552 ; Wood's Law of Nuisance, sec. 611. As, there-
fore, the statute does not deprive the plaintilf of any right to a
reasonable use of his land, but only prohibits an unnecessary,
unreasonable use, it does not deprive him of any property right.
Hence it is not necessary to inquire whether, as an invasion of
property riglits, the limitation of the statute is one which might
properly be made for the general good.
Other grounds suggested at the trial in support of the motion
for a nonsuit have not been argued, and are understood to be
waived. The objection based upon the unconstitutionality of
the statute is not sustained, and the exception to the denial of
the motions for a nonsuit and to direct a verdict upon that
ground is overruled.
^^^ The defendant's wife, Ann, being a witness in his behalf,
whether she had any bias, prejudice, or hostility toward the
plaintiff which might affect her testimony, was a material ques-
tion: Martin v. Farnham, 25 X. H. 195. As she denied having
any ill-will toward the plaintiff or liis family, it was tlierefore
proper that she sliould be inquired of upon cross-examination
as to a statement made by her tending to sliow such feeling of
hastility as might tend to color her tes-timony. She denied
m.aking such statement, but admitted that at another trial when
sl'.e was preseiit tlie statement in question had been testified to,
and that she did not then deny it. The inquiry as to the tes-
timony at ihe former trial was not made for the purpose of
callit'g V e matter to t^^e witness' recollection, and thereby en-
abling her to withdraw the denial if erroneous, but for the pur-
pose of establishing the falsity of her denial that she had made
the statement, and as tending to sliow that the declaration was
in fact made by her. The question therefore is, wliether froiu
the fact that a p(^rson present at a judicial proceeding hears in
silence a statement testified to by a witness, it can he inferred
that by such silence he admits the truth of the statement. "Xo
principle is better settled than that a man's silence upon an
C80 American State EEroRTs, Vol. 101. [K H.
occasion wl en l.e is at liberty to speak, and the circumstances
naturally call upon him to do so, may be properly considered by
the jury as tacit admissions of the statements made in his pres-
ence The circumstances must not only be such as af-
forded an opportunity to ... . speak, but properly and nat-
urally called for some action or reply from men similarly situ-
ated": Corser v. Paul, 41 N. H. 24, 29, 77 Am. Dec. 753; 1
Greenleaf on Evidence, sec. 198. The neglect to reply to state-
ments made in one's presence is not an admission of their truth
unless they are addressed to the party, or made under such cir-
cumstances as to require a reply: Gale v. Lincoln, 11 Yt. 152;
Hersey v. Barton, 23 Vt. CS5, G87, G88.
The only fact appearing in the case, that the witness Ann was
present at the trial when the statement in question was testified
to, docs not bring the case within the rule. She would have had
no right to interrupt the proceedings to interpose her denial.
Her attempt to do so would have been a violation of the rules
of order in judicial proceedings, and it' persisted in might have
subjected l;er to punisliment. Even if she were a party to the
suit on trial, she would have had no more right to interrupt
a witness upon the stand than any bystander, and lier attempt
1o do so would be an equally grave impropriety. Even if she
was or could liave been called as a witness, her position as a
party would give her no right to volunteer testimony upon the
stand; her duty would le to answer such interrogatories as
might be put to lier by counsel, wliose duty it would be to elicit
such testimony as was material ^^*'^ and iinportant in the case
on trial — not to call upon her to testify for the purpose of guard-
ing against future controversies. Tl:e statement may have been
immaterial in the former trial. It may liave been made by a
witness so wanting in credibility as not to merit denial, or the
case itself may luive utterly failed on the merits against the
witne-s, so that no reply to any part of it was advisable. The
fact, therefore, that the witness did not deny the statement
when made in her presence at a former trial was incompetent
as tending to estab'ish the falsity of her testimony, and should
not have been adniittcd : 1 Greenleaf on Evidence, sec. 198, note;
?ilelen v. Andrews, Moody & M. o'-lG; Conimonwealih v. Kennev,
12 :d."t. 2:]r>. 237, IG Am. Dec. 672; Blackwell etc. Co. v. Mc-
Elwiv. 9G X. C. 71, GO Am. Eep. 404, 1 S. E. G76; Broyles v.
State, 47 Ind. 251. The suggestion in Blanchard v. Hopkins,
G2 ]\Ie. 119, that the rule is changed by the admission of the
Dec. 1903.] Hendry v. Xorth Hampton. 681
parties to testify, is not sustained by the reasons for the exclu-
sion or the modern authorities : Blackwell etc. Co. v. McElwee,
96 K C. 71, 60 Am. Eep. 404, 1 S. E. 676; Broyles v. State, 47
Ind. 251. Wliether the evidence of the plaintiff's wife as to
the loss of her wedding ring had any tendency to show such ill-
will on the part of the defendant's wife toward the plaintiff or
his family as would affect her credibility, was a question of
remoteness determinable at the trial. The evidence improperly
admitted was upon a material issue, and had a plain tendency to
prejudice the defendant. For this error the verdict must be set
aside.
Exception sustained.
All concurred.
A Property Owner may, it seems, in the absence of a controlling'
statute, cut off the air and light from his neighbor's premises by
building a high fence or other structure on his own land, without
regard to the motive by which he is actuated: Bordeaux v. Greene,
22 Mont. 254, 74 Am. St. Eep. 600, 56 Pac 218; Metzger v. Hoch-
rein, 107 Wis. 267, 81 Am. St. Eep. 841, 83 N. W. 308, 50 L. E. A.
305. See, also, Fisher v. Feige, 137 Cal. 39, 92 Am. St. Eep. 77, 69
Pac. 618, 59 L. E. A. 3o3; Guethlcr v. Altman, 26 Ind. App. 587, 84
Am. St. Eep. 313, 60 N. E. 355; and compare Medford v. Levy, 31
W. Va. 649, 13 Am. St. Eep. 887, 8 S. E. 302, 2 L. E. A. 3GS. It has
been held that the legislature is not competent to forbid a land
owner from wasting subterranean waters: Huber v. Merkel, 117
Wis. 355, 98 Am. St."^Eep. 933, 94 N. W. 354. It is believed, however,
that this decision is unsound: See Katz v. Walkinshaw, 141 Cal.
116, 70 Pac. 663', 74 Pac. 766, 99 Am. St. Eep. 35, and note.
HEXDUY V. XOETH HAMPTON.
[72 N. II. 351, 56 Atl. 922.]
NEGLIGENCE— Proximate Cause.— If a hole in a highway
gives a bicycle rider thereon an impetus which carries him over an
unrailed and dangerous embankment, to his injury, the hole, and
not the embankment, cannot, as matter of law, be" regarded as the
cause of the injury, (p. 682.)
MUNICIPAL CORPOEATIONS— Defective Kighv^ay.— If a
town allows an embankment along a highway therein to remain in
an unrailed and dangerous condition, it is liable to a bicycle rider
who, without fault on his part, is injured thereby, (p. 684.)
HIGHWAYS — Defects in. — A bicycle rider injured by reason
of a defect in a highway, consisting of an unrailed and dangerous
embankment, rendering it unsuitable for ordinary travel, is entitled
to recover for an injury received thereby, (pp. 684, 685.)
While plaintiff was slowly riding a bicycle along a highway
in the defendant town, and exercising due care, she ran into a
682 American State Reports, Vol. 101, [N. H.
mud puddle, and was thrown over an unrailed and dangerous
embankment adjoining the road, and received the injuries for
which she seeks to recover. Verdict for plaintiff and defend-
ants excepted.
Emer}-, Simes & Corey, for the plaintijff.
Page & Bartlctt, for the defendants.
^^ EEMICK, J. 1. It is found by the superior court that
there was evidence tending to prove tliat the plaintilf was in the
exercise of due care. Furthermore, we have examined the evi-
dence for ourselves, so far as it is made a part of the record,
and are of the opinion that it warrants the finding of the su-
perior couiT in this particular. The defendants' motions for a
nonsuit and verdict, upon the ground that the plaintiff was not
in the exercise of due care, were therefore properly overruled.
The defendants' requests for instructions upon this point, so far
as tliey embodied a correct statement of tlie law, were given in
substance; and no error appears either in tlie instructions given
or in the refusal of those requested.
2. The contention of the defendants, tliat because the hole in
the road gave to the plaintiff the impetus which carried her
over th.e unrailed and dangerous embankment, therefore the hole
— not the unrailed embankment — was as a matter of law the
cause of her injury, is best answered by the authorities, whicli
are so conclusive against the defendants' contention, at least in
this jurisdiction, that to enter u} on a discussion of the question
would be a work of supererogation: Littleton v. IJichardson, 3'i
X. 11. 59, G3; Stark v. Lancaster, 57 X. 11. 8S; :\[errill v. Clare-
mont, 58 X. IT. -IGS; Ela v. Postal Tel. Cahle Co.. 71 X. II.
1, 51 Atl. 281; Templeton v. Montpelier, 5G Vt. 328; Elliott
on lioads and Streets, sec. G17. According to the view con-
tended for by tlie defendanls. there could liavc been no recovery
in Xorris v. Haverhill, G5 X. II. 89, 18 Atl. 85, 1G3 Briefs and
Cases, 159. and Seeton v. Dunharton, 72 X. II. 2G9, 5G Atl. 197.
An able and instructive discns-ion of the question may be found
in Sherwood v. Hamilton. 37 V. C. Q. B. 419, wlien? the con-
flicting autliorities are exliaustively reviewed and the Xew
Hampshire rule ado])t(d, as being in accordance with the weight
of authority ami the better reasoning. The instructions given
upon tills joint were in accordance with the principles estab-
li>}ied bv tiio authorities cited, and the instructions requested
were properly denied.
Dec. 1903.] Hendry v. North Hampton. 683
3. The defendants' next and last contention is that section 1,
chapter 59, of the Laws of 1893, making "towns .... liable
for damages happening to any person, his team or carriage, trav-
eling upon ^^^ a bridge, culvert, or sluiceway, or dangerous
embankments and defective railings, upon any highway, by rea-
son of any obstruction, defect, insufficiency, or want of repair
of such bridge, culvert, or sluiceway, or dangerous embank-
ments and defective railings which renders it unsuitable for the
travel thereon,'' imposes no duty upon towns to build and main-
tain suitable bridges, culverts, sluiceways, or railings for the
protection of persons riding bicycles, and no liability for injuries
happening to such persons from defects in these particulars.
Under a statute providing "that any person or persons sus-
taining bodilv injury upon any of the public highways or streets
in this state, by reason of neglect to keep such public highways
.... in reasonable repair and in condition reasonably safe and
fit for travel," may recover just damages of the town in de-
fault, the supreme court of Michigan has held that a person
injured while riding upon a bicycle, by reason of a condition of
the highway unsuitable for that mode of travel, but reasonably
safe for travel in ordinary vehicles like wagons and carriages,
cannot recover; that at the time the law was enacted bicycles
were in use only to a limited extent, and the legishiture did not
intend to place upon townships and cities tlie burden of keeping
their roads and streets in a safe condition for that kind of
conveyance; that reasonable care in the construction and main-
tenance of hiiihways for ordinary vehicles, such as wagons and
carriages, is tlie measure of duty resting upon municipalities:
j\Iic]i. Conip. Laws 1897, c. 91, sec. 1; Leslie v. Grand Eapids,
120 Mich. 28, 78 X. W. 885.
Construing a statute of 'Kcw York which provided that "every
town shall be liable for all damages to person or property, sus-
tained by reason of any defect in its highways or bridges," the
court said : "It cannot be successfully claimed that a larger meas-
ure of duty on the part of commissioners of highways is due
to bicycle ridei'S than to persons traveling upon the road in
ordinary vehicles. It is apparent that a bicycle rider upon an
ordinary coimtry road is exposed to greater dangers than a
person riding in a wagon, and the great increase in tlu' number
of persons using these vehicles has created a demand for bettor
and safer roads ; but under the present highway laws a road in
a condition which is reasonably safe for general and ordinary
travel is all that the commissioners of highways are bound to
maintain": N. Y. Eev. Stats., 8th ed., p. 3972, sec. IG; Stephen
684 . American State Reports^ Vol. 101. [N. H.
V. North Hampstcad, 80 Ilun, 409, 411, 412, 30 N. Y. Supp.
128.
In Massachusetts it is provided that "if a person receives or
suffers bodily injury, or damage in his property, through a de-
fect, or want of repair or of sufficient railing, .... be may
recover .... the amount of damage sustained thereby.'' Con-
struing this statute, the court said: "The statute .... was
passed '"^^ long before bicycles were invented, but although, of
course, it is not to be confined to the same kind of vehicles then
in use, we are of the opinion tliat it should be confined to vehi-
cles ejusdem generis, and that it does not extend to bicycles,
.... A bicycle is of but little use in wet weather or on frozen
ground. Its great value consists in the pneumatic tire; but this
is easily punctured, and no one who uses a wheel thinlvs of tak-
ing a ride of any distance without having his kit of tools with
him. A hard rut, a sharp stone, a bit of coal or glass, or a
tack in the road, may cause the tire to be punctured, and this
may cause tlie rider to fail and sustain an injury. It may im-
pose an intolerable burden upon towns to hold them bound to
keep t'.u'ir roads in such a state of repair and smootliness that
a bicycle could go over tl.em with assured safety." It was ac-
cordingly held that a road wliicii is reasonal.ly sale for ordinary
travel is not defective merely because not fit for use by bicycles :
]\Iass. Pub. Stats., c. o"^, se^'. 18; Kicluirdson v. Dauvers, 17G
Mass. 413, ?9 Am. St. Rep. 320, 57 N. E. 688, 50 L. R. A. 127;
Rust v. Essex, 182 ]\Iass. 313, 65 N. E. 397.
Of the soun(hies-s of these decisions and their applicalfility to
our statute we need not inquire, for tliey fall far sliort of decid-
ing that a bicycle rider injured by reason of a defect in the
highway rendering it unsuitable for ordinary travel is without
remedy, merely because when injured he was in the saddle of
a bicycle instead of on a wagon seat, or a liorse's back, or on
his feet pushing a bicycle. In Rust v. Essex, 182 Mass. 313,
65 N. E. 397, the court assum.ed that if the highway could have
bcxin found defective for ordinary travel, the plaintiff '^might
have rwovercd for his injuries, notwithstanding the fact that he
was riding upon a bicycle." The Michigan and IS'ew York
cases convey the same idea.
The defect complained of in the present case was an unrailcd
and dangerous emliankment. "We must assume from tlie instruc-
tions of the court and tlie verdict of the jury that it rendered the
hif{hwav unsuitable, not only for traveling l)y bicycle, but for
ordinary travel as welh This being so, we see no reason wliy
the fact that the plaintiff was on a bicycle, instead of on horse-
Dec. 1903. J Hendry v. North Hampton. 686
back, or on foot pushing her bicycle, should preclude her re-
covery. Common sense rejects the distinction. The statute
furnishes no warrant for it, either in letter or spirit. It says :
"Towns are liable for damages happening to any person ....
traveling," etc., without any expressed limitation as to the mode
of conveyance. "A traveler is one who travels in any way."
To travel is "to pa?s or make a journey from place to place,
whether on foot, on horseback, or in any conveyance." Trav-
eling is ''the act of making a journey; change of place; passage."
The word "traveling," as used in some penal statutes, may have
a narrow meaning; but in order to maintain an action against
a city or town for a defect in a highway, ^^^ one need be a
traveler only in the general sense above indicated: Hardy v.
Keone, 52 N. H. 370, 377 ; Hamilton v. Boston, 14 Allen, 475,
483; Black's Law Dictionary, 1185; Century Dictionary, tit.
"Travel," "Traveler," "Traveling." It should also be observed
that the bicycle is recognized by the public policy of N"ew Hamp-
shire as a legitimate method of traveling upon the highway,
and that it is in common use for that purpose, with general
consent: Laws 1897, c. 61, sec. 1, c. 93.
Being a traveler upon the highway, both according to the lit-
eral meaning of that term and by the public policy of the state
as clearly manifested by the legislation and general custom re-
ferred to, the plaintiff, notwithstanding she was riding on a
bicyr-le, was entitled at least to a highway in condition suitable
tor ordinary travel, and to damages happening to her by reason
of any unsuitableness of the highway for such travel. It fol-
lows that the instructions given upon this point were correct,
and that those requested were properly denied.
The question discussed as to whether a bicycle is a carriage,
within tlie meaning of the statute, seems quite immaterial to
the present case, because the plaintiff claims nothing on account
of damage to her wheel, and her right to recover for damage to
her person is in no way dependent upon the means by which she
was moving, so long as she was a traveler and in tlie exercise of
due care. But if the question were material, and the instruction
that a bicycle is not a carriage erroneous, the error was entirely
in the defendants' favor and prejudicial to the plaintill; alone.
Exceptions overruled.
All concurred.
For Antliorittrsi lionrincr iipon the docision in the principal case,
see Knouff v. Logansport, 26 Tnd. App. 202, 84 Am. St. Eep. 292,
59 N. E. 347; Uptown v. Town of Windham, 75 Conn. 2SS, 96 Am. St.
Eep. 197, 53 Atl. 660; ■Rartram v. Sharon, 71 Conn. 686, 71 Am. St.
(586 American State Reports, Vol. 101. [N. H.
Eep. 225, 43 Atl. 143, 46 L. E, A. 144; Plymouth v. Graver, 125 Pa.
St, 24, 11 Am. St, Eep. 867, 17 Atl. 249; Jackson v. Wagner, 127 Pa.
St. 184, 14 Am. St. Eep. 833, 17 Atl. 903; Schaeflfer v. Jackson, 150
Pa. St. 145, 30 Am. St. Eep. 792, 24 Atl. 629, 18 L. E. A. 100; Siegler
V. Mellinger, 203 Pa. St. 256, 93 Am. St. Eep. 768, 52 Atl. 175.
BOND V. BEAN.
[72 N. H. 444, 57 Atl. 340.]
GIFTS. — Evidence that the Owner of Corporate Stock Deliv-
ered the Certificate Thereof to another person, accompanied with
words declaring the donor's intention to make a gift to such person,
and that the stock was accepted and subsequently held by such
donee, warrants a finding that the gift was absolute, (p. 687.)
GIFTS —Evidence of Intention. — The fact that a certificate
of corporate stock is not indorsed and assigned by the donor to the
donee does not render the gift of it incomplete, but is evidence bear-
ing upon the intention with which the donor made the gift, to be
considered by the jury with the other evidence, (p. 687.)
TRIAL. — Denial of E^CLuests for Specific Instructions is not
error when their substance has been embodied in instructions al-
ready given, (p. 687.)
TRIAL. — Objection to Improper Remarks made by Counsel
must be made at the time the statement is made, or within a reason-
able time thereafter, and must be brought to the attention of such
counsel, as well as to that of the court, (p. 687.)
J. W. Fellows and Burnham, Brown & Warren, for the plain-
tiff.
Mitchell & Foster and Taggart, Tuttle & Burroughs, for the
defendants.
^4« BINGHAM, J. The defendants contend that the verdict
cannot be sustained for the following reasons : 1. That the evi-
dence was insufficient to warrant the jury in finding a completed
gift; 2. That there was error in the charge to the jury; and 3.
That the plaintiff's counsel made improper statements in his
closing argument. We will consider the objections raised in the
order named.
1. The court held in Bean v. Bean, 71 N. 11. 538, 541, 53 Ath
907, 908, that "in the case of a gift inter vivos the evidence
should be sufficient to render a finding of the fact of delivery
reasonable, and should disclose the circumstances under which
the delivery occurred; that it may appear that the gift was ab-
solute, not conditional; that it was complete, not made in the
donor's last sickness, or on his deathbed and in view of death."
The evidence adduced in this case would seem to answer these
requirements. There was positive testimony that the certificate
Feb. 1904.] Bond v. Bean. 687
of stock was delivered to the donee, accompanied by words de-
claring the donor's intention to make the gift, and at a time
and under circumstances such that it could be found that the
gift was absolute; and the jury have so found. The delivery
of the stock with an intent to make a completed gift, and its
acceptance by the donee, vested in her the equitable title to the
property. The fact that the certificate was not indorsed did not
render the gift incomplete as a matter of law. It was evidence
bearing upon the intention with which the donor made the
gift, to be considered by the jury with the other evidence in the
case: Blazo v. Cochrane, 71 N. H. 585, 587, 53 Atl. 1020; Keed
v. Copeland, 50 Conn. 472, 47 Am. Eep. 663 ; Allerton v. Lang,
10 Bosw. 362; Walsh v. Sexton, 55 Barb. 251; Commonwealth
V. Crompton, 137 Pa. St. 138, 20 Atl. 417; First Nat. Bank v.
HoJand, 99 Va. 495, 86 Am. St. Eep. 898, 39 S. E. 126; Lawler
V. Kell, 6 Ohio Dec. 33 1 ; Leyson v. Davis, 17 Mont. 220, 42
Pac. 775, 31 L. E. A. 429.
2. The request for instructions was given in substance. The
defendants cannot complain because the exact language of their
request was not followed. As was said in Walker v. Boston
etc. E. E. Co., -^^^ 71 K H. 271, 273, 51 Atl. 918, 919, "the
substance of the requested charge having been given, it is no
ground of exception that .... a particular form of expression
was not used."
3. It is unnecessary to consider whether the statement of
counsel in his closing argument was proper or improper, for in
the view we take of the case no exception was saved entitling
the defendants to question the legitimacy of the argument. It
appears that counsel for the defendants did not undertake to
procure an e.xc ption to the alleged improper statement until
after opposing counsel had finished his argument, and did not
bring his objection to the attention of opposing counsel until
after the jury had retired to deliberate. In order to save an
exception of this nature, an objection should be taken at the
time the alleged imjDroper statement is made, or within a rea-
sonable time thereafter; and counsel taking the objection should
see that it is brought to the attention of opposing counsel, as
well as to that of the court.
In Story v. Concord etc. E. E. Co., 70 N. 11. 364, 379, 48 Atl.
288, 294, the court said that an "objection to incompetent evi-
dence of counsel in argument should be taken as to other in-
competent evidence — when it is offered" ; that "the error ....
is not in all cases incurable" ; that "an immediate correction of
the error may save the trial"; that "at no time can such corree-
688 American State Reports^ Yol. 101. [N. H.
tion be ma-le with greater probability of removing the wrongful
effect than at the time of utteranc<i^' ; and that "for counsel,
conscious of the error, to be permitted to sit by without making
objection until there is less probability the wrong can be cured,
would be to turn a rule of justice and fairness into a mere trap."
In Monroe v. Connecticut Hiver Lumber Co., G8 IST. H. 89, 91,
39 Atl. 1019, 1020, the defendants sought to avail tliemselves
of an exception by presenting to the court during the argument
a writing stating their objection ; but as "tliis exception was not
called to the attention of the plaintiffs' counsel and he had no
knowledge of it until after the trial," the court refused to con-
sider it.
Exceptions overruled.
All concurred.
The Delivery of Bank Sforl- hy a husband to his wife with intont
to transfer title by way of gift is effectual as an equitable assign-
ment, although no legal title passes for want of indorsement on the
certificate or transfer on the booT^s of the bank: First Xat. Bank
V. Holland, 99 Va. 495, 86 Am. St. Ecp. 898, 39 S. E. 126, 55 L. E. A.
155.
SAXDERS V. FRAXKrORT MARINE, ACCIDENT AND
PLATE GLASS INSURANCE COMPANY.
[72 N. 11. 485, 57 Atl. 655.]
INSURANCE — Employer's Indemnity. — If a policy of employ-
er's liability insurance provides that if suit is brought against the
assured to enforce a claim on account of an accident covered by the
policy, the insurer will, on notice thereof, take charge of the litiga-
tion in the name and behalf of the insured, or settle it at its own
cost, unless it elects to pay to the insured the indemnity, the assured
being forbidden to settle any claim or incur any expense without
the insurer's written consent, and the policy, also providing that
no claim shall lie against the insurer under the policy, unless brought
by the insured to reimburse him for loss actually sustained and paid
by him in satisfaction of a judgment, the insurer, after taking con-
trol of proceedings in a suit against the assured, who is insolvent,
cannot be discharged of liability, except by payment of the indem-
nity, or a settlement of the plaintiff's claim reduced to judgment,
(p.' 694.)
INSURANCE — Employer's Indemnity.— If a policy of em-
ployer's lialjility insurance provides tliat no claim shall lie against
the insurer on the policy unless brought by the assured to reimburse
him for loss sustained and paid by him in satisfaction of a judg-
ment, and that if the insured shaU take control of proceedings in
an action to enforce a claim arising under the policy, he shall either
pay the indemnity or secure the discharge of the insured, equity has
jurisdiction to compel the insurer to pay the amount of the insurance
in satisfaction of a judgment obtained by an employe against the
insured, if the insurer has taken control of the proceedings as pro-
Mar. 1904.] Sanders v. Frankfoet Marine etc. Ixs. Co, 689
vided for in the policy, and has continued them to final judgment,
though the insured was then insolvent and unable to pay such judg-
ment, had made no claim for the insurance, and had incurred no
expense nor made any payment on account of the litigation, (pp.
699, 700.)
Streeter & Ilollis and E. K. "Wood worth, for the plaintiff.
A. E. Dennison, for the Strafford Paper Company.
L. P. Snow and J. S. H. Frink, for the insurance company.
4«i PARSONS, C. J. The plaintiff has recovered judgment
against the defendant paper company for some nine thousand
dollars. The paper company "***" have not paid the judgment
and have no property upon which a levy can be made, but they
hold a policy of insurance is.sued by the defendant insurance
com|;any covering their liability for the injury which consti-
tuted the plaintiff's cause of action, to the extent of five thou-
sand dollars.
The obligations imposed upon the insurer by the policy con-
tract are in dispute. The plaintiff claims it constitutes upon
the facts a subsisting obligation upon the insurance company to
pay five thousand dollars to the paper company, and he contends
that upon oquitaLlo grounds the money should be paid to him.
The paper company, so far as appears, make no claim to the
money, nor do tliey object to a payinent to the plaintiff. If the
insurance companv are under an existing obligation to pay five
thousand dollars, it is immaterial to them whether they pay it
to the paper company or to the plaintiff. The paper company
cannot object to a decree for a payment of the money to the
plaintiff in discharge pro tanto of his judgment against them,
for thereby they are relieved from loss or discharged from lia-
bility to that amount, which is all they can claim under any
construction of the policy. The insurance company concede the
validity of the policy, that it covers the injury for wliich the
paper com])any have been found liable, and that the amount of
such liability has been judicially determined to be greater than
the total claim under the policy. Their position is, that as the
paper company have paid nothing they have lost nothing, and
the contingency upon which the liability of tlie insurance com-
pany was made to depend by the terms of the policy has not yet
occurred. Thev rely upon the grant or covenant of the policy
by which they "agree to indemnify .... against loss from
.... liability for darruiges on account of bodily injuries, fatal
-or nonfatal, accidentally suffered by any person .... and re-
Am. St. Rep., Vol. 101— ii
690 American State Eepoets, Vol. 101. [N. H.
suiting from negligence of the assured," and the further agree-
ment or condition in clause 8: "No action shall lie against the-
company as respects any loss under this policy unless it shall
Le brought by the assured himself to reimburse him for loss
actually sustained and paid by him in satisfaction of a judg-
ment after trial of the issue.'^ Under these provisions, the in-
surance company claim that the only legal obligation resting
upon them is to pay to the paper company such sum as may
liave been paid by the insured upon a judgment recovered
upon the liability covered by the policy. Two cases similar to
the present are cited in wliich this contention appears to have
been adopted upon a similar policy : Frye v. Bath etc. Co., 97
Me. 211, 94 Am. St. Rep. 50U, 54 Atl. 395, 59 L. 1{. A. 444,
and Travelers' Ins. Co. v. Moses, 63 N. J. Eq. 260. 92 Am. St.
Rep. 663, 49 Atl. 720. In the last case, in an earlier decision
in the court of chancery, it was held that equity would apply
tl'.e whole indemnity to the satisfaction of the plaintiff's
^^^ judgment : Beacon Lamp Co. v. Travelers' Ins. Co., 61 N.
J. Eq. 59, 47 Atl. 579. This view was not followed in the court
of appeals, w-hich limited the amount so applied to a sum which
tiie court by a process of reasoning construed had been paid:
Travelers' Ins. Co. v. Moses, 63 N. J. Eq. 260, 92 Am. St. Rep.
G63, 49 Atl. 720. In Bain v. Atkijis, 181 Mass. 240, 92 Am.
St. Rep. 411. 63 X. E. 414, 57 L. R. A. 791, which has also
been cited by the defendants, the obligation of the insurance
company liad been performed. The question of the plaintiff's
equitable right to compel the application of a subsisting obliga-
tion to indemnify against his claim to its satisfaction was not
in the case and was expressly excluded from consideration.
Discussion has been had of the question whether the present
contract was one of insurance against damage or of insurance
against liability. In the following cases cited by the plaintiff
tlie policies in question were held to be contracts of indemnity
against liability: Fritchie v. IMiller's etc. Extract Co., 197 Pa.
St. 401, 47 Atl. 351; Iloven v. Employers' .etc. Corp.. 93 Wis.
201. G7 X. W. 46, 32 L. R. A. 388; Anoka Lumber Co. v. Fi-
delity etc. Co., 63 Minn. 286, 65 X. W. 353, 30 L. R. A. 689;
American etc. Co. v. Fordyce. 62 Ark. 562, 54 Am. St. Rep.
305, 36 S. W. 1051 ; Ficlelitv etc. Co. v. Fordyce. 64 Ark. 174, 41
S. W. 420 ; Fonton v. Fidelity etc. Co.. 36 Or. 283, 78 Am. St.
Rep. 792, 56 Pac. lOOr.. 48 L. R. A. 770. The phraseologv of
tlie agreement or covenant in tiie poliry before tlie court differr^
Mar. 1904.] Sanders v. Frankfort Marine etc. Ins. Co. 691
materially from that of the policies construed in those cases.
The decisions, therefore, are not directly in point.
If it be conceded that the contract is one of indemnity against
damage merely, the question presented would not be whether
an action at law is now maintainable by either the plaintiff or
the paper company, but whether there is power in equity to
grant the relief asked. But whether such power exists or not,
the indemnitor has the right to perform his contract of indem-
nity by payment of the claim indemnified against. He may
also, if he deems it necessary, stipulate for the right to perform
the contract in this way, and may also agree that he will so
perform it. If there be any uncertainty as to the right of
a creditor to claim payment in equity of one who has agreed to
indemnify the debtor against his claim, there is no doubt of
his right to do so against one who has assumed the debt or
agreed to pay the claim. An agreement to assume a debt is a
promise to pay it as the promisoi*^s own debt: Locke v. Homer,
131 Mass. 93, 109, 41 Am. Eep. 199. "If one person agrees
with another to be primarily liable for a debt due from that
other to a third person, so that as between the parties to the
agreement the first is the principal and the second the surety,
the creditor of such surety is entitled, in equity, to be substi-
tuted in his place for the purpose of compelling such principal
to pay the debt" : Keller v. Ashford, 133 U. S. 610, 623, 10
Sup. Ct. Eep. 494, 496, 33 L. ed. 667. If the insurance com-
pany, by force of the policy and the plaintiff's Icss^ are now
indebted to the paper company, it is plainly equitable that such
indebtedness should be applied to the satisfaction of the plain-
tiff's ^^'* claim. It is equally clear that equity has power to
make such application: Hunt v, Xew Hampshire Fire etc.
Assn., 68 X. H. 305, 73 Am. St. Eep. 602, 38 Atl. 145, 38 L.
E. A. 514. See, also, First Xat. Bank v. Hunton, 70 N. H.
224, 46 Atl. 10-19; Barton v. Croydon, 63 X. H. 417; Holt v.
Penacook Sav. Bank, 62 X. H. 551 ; Gerrish v. Cerrish, 62 N.
H. 397; Keene etc. Bank v. Herrick, 62 X. 11. 174.
These proposition's do not appear to be seriously controverted;
liut the contention is. as has already been suggested. (1) that
the insurers have not agreed to discharge the liability, and
hence have not assumed the claim, and (2) that they do not
now owe the paper company anything. The question for inves-
tigation is, therefore, the meaning of the policy contract : and
if the converse of either contention is sustained, the plaintiff is
entitled to relief.
692 American State Repoets, A-'ol. 101. [X. H,
In addition to i]\e provisions of the policy to which reference
has Leeu made and upon wliieh the defendant insurance com-
pany rely, and which are similar to those upon which the de-
cisions in Maine and Xew Jersey are foiinded, tlie policy con-
tains the following "^general agreements, which are to be con-
strued as co-ordinate" with the general covenant of the policy :
"2. If thereafter any suit is brought against the assured to
enforce a claim for damages on account of an accident covered
by tliis policy, immediate notice thereof shall be given to the
company and tlie company will defend against such proceedings.
in the name and on behalf of the assured, or settle tlie same at
i:s own cost, unless it shall elect to pay to the assured the in-
demnity provided for in clause A [five thousand dollars].
"3. The assured shall not settle any claim, except at his own
cost, nor incur any expense, nor interfere in any negotiation
for settlement or in any legal proceeding without the consent
of the company previously given in writing The assured
when requested Iiy tlie company shall aid in securing evidence
and in elfe.:ting settlements."
Whether th.e contracts considered in the Maine and Xew Jer-
sey cases coniaincd similar stipulations does not appear from
the reports of the cases. It is |)robable that like provisions were
contained in these policies, but in neither of these cases is there
any discus-ion or reference to such stipulations as a part of the
contract. Thev stand in the policy at the liead of tlie '•'general
agre:'n!ents*' of v.h.ich clause 8 is one. and are of course of equal
force in modifying or explaining the covenant of which tliey
'•'are to be construed as co-ordinate, as conditions." In Anoka
Lumber Co. v. Fidelity etc. Co.. (13 :\rinn. 28(5. G5 X. W. 353.
30 L. R. A. G^9. Hoven v. Employers' Liability etc. Corp.. 03
Wis. 201, G7 X. W. 40. 3-2 L. R. A." 388, and Fenton v. Fidelity
etc. Co.. 36 Or. 283, 78 Am. St. Rep. 792. 56 Pac. 1096, 48
L. R. A. 770. similar provisions are considered as furnishing
evidence that the contract was one of indemnity against
'*""' liability. In the case first cited, the court sustain their
conclusion, lliat the contract is one of indemnity against lia-
bility, in ])art as follows: ''Tlie com])anv takes upon itself the
settlement of loss and the control of all legal jiroceedings, and
the assured is forbidden to settle any claim or incur anv ex-
pense without its consent in writing If the plaintiff is
forbidden to settle a claim for an accident of this kind, we fail
to see how it is imperative upon him to pay a judgment ren-
dered against him upon such a claim, as a condition precedent
Mar. 1904.] Sandees v. Feakkfort Marine etc. Ins, Co. G93
to his right of recovery. The insurance company, by the terms
of its own policy, has taken into its own hands the whole ma-
chinery for settling such claim, and will not allow the employer
to do it." In Hoven v. Employers' Liability etc. Corp., S3 Wis.
201, G9 N". W. 46, 32 L. E. A. 388, the court say: "Again, by
one of the conditions, the insurance company assumes entire
charge and responsibility for the settlement of the loss and of
any legal proceedings, and for the payment of the costs there-
of. There is no way provided by which it can be relieved of its
liability, except by actual payment to the employer of the full
amount for which it could in any event become liable." It is
further said in the same opinion that this provision with others
is "inconsistent with any reasonable theory other than that the
contract of insurance is one of indemnity against liability."
The provisions in the present policy are, if anything, more strin-
gent and particular in prescribing the obligations assumed by
the insurance company than the reports of the cases cited in-
dicate that they were in those cases. While from the different
language used in the general covenant these cases are not, as
already stated, authority for the position that the policy in
this suit is a policy of indemnity against liability generally,
yet they are authority for the proposition that these provisions
are consistent with an intention to assume the liability. By
tliese stipulations, the insurers not only reserve the right to per-
form tlicir contract of indemnity in a particular way, but agree
that they will so perform it.
They agree that upon notice of a suit brought to enforce a
claim for damages on account of an accident covered by the pol-
icy they will do one of two things: Thov will (1) defend against
tlie proceedings in the name and on behalf of the assured, or (2)
settle the same at their own cost, unless thev elect to pav the full
amount of the indemnity to the assured. This is an agreement,
in performance of their contract of indemnity, (1) to defend,
(2) to settle, or (3) to pay the assured. The last two plainly
provide for the performance of the contract of indcmnitv before
the assured has suffered loss, in the sense of having been com-
pelled by legal proceedings to pav damages. So far as the
agreement to defend involves the relief of the assured from the
expense of such '^^^ litigation, that agreement also involves the
performance of the contract of indemnity by the assumption of
the liability indemnified against. The sole question, therefore,
is whether by tlie agreement to defend against the proceedings
the insurers also agree to perform their contract by the assump-
G9-i American State Reports, Vol. 101. [X. H.
tion of the entire liability, within the limits of the contract, in
cases where they have assumed the defense.
If "to defend" means "to protect, to secure against attack" —
in short, to successfully defend — it is perfectly clear that the
insurance company agree to perform their covenant of indemnity
against loss by assuming the liability. This is conceded. But
ic is claimed that the agreement to defend against the proceed-
ings means merely to contest the suit to final judgment. While
in a technical sense to defend a suit is to contest it, the word
"defend" also includes the broader meaning above suggested:
Webster's Dictionary. If the meaning were, as is claimed,
merely the conduct of the litigation until judgment should be
rendered, no reason has been suggested why the purpose was not
explicitlv stated. Having entered upon the defense of the suit,
no way is perceived by which (at least, before judgment) the
insurance company could escape liability, except by settlement
with the plaintiff or payment to the assured. The engagement
is not merely to contest the suit to judgment, but to "defend
against such proceedings" — meaning, necessarily, all the pro-
ceedings in the suit founded upon the claim for damages against
the insured. The judgment is a proceeding in such a suit, as
also is the execution. After final judgment, payment is ordin-
arily the only defense open which will defeat further progress
in the proceedings — the issuance of execution.
In this case tliere lias lioen execution upon which the paper
company's pro])erty has been sold. Tbat the amount of tbe sale
was nominal is immaterial. Tlie fact discloses the abandonment
of defense by the insurance company, their failure to settle tbe
claim, and hence their liability to pay the insured the amount of
the indemnity provided, unless it be established that tbe rendition
of tbe judgment excuses the insuraiu^e company from furtlicr
defense of tbe proceedings. Furtber evidence to tbe contrarv is
to be found in tbe provisions of tbe contract tbat tbe assured sliall
not settle any claim except at bis own cost, nor interfere in anv
negotiation for settlement or in any legal proceeding. The sub-
stance of these provisions is, that after notice of the suit to the
insurer, imless the company pay him tbe indemnity, tlio as-
sured's control over the matter ceases; he cannot settle th.e
claim, nor can be conduct or direct the litigation. If the com-
pany settle or defeat the claim, tbe liability under whicli he
labors is assumed '*^'' and discharged by the insurer. In
every possible event except the defeat of their effort to prevent
judgment against tbe insured, the company agree to perform
Mar, 1904.] Sanders v. Fgankfort Marine etc. Ins. Co. 695
iheir contract without the previous payment of anything by the
insured. If an exception were intended in this case, it seems
probable tliat it would be plainly stated^ or some good reason
would be apparent for the different undertaking. None is per-
ceived.
The insurance company alone are responsible for the conduct
•of the suit, and for the failure to adjust the claim before judg-
ment. If the intent was that the assured should assume the
settlement of the claim, when judgment was ordered, it is at
least probable that the clause by whicli he was prohibited from
settling any claim or interfering in any legal proceeding would
have been limited by the insertion of the words "before final
judgment." In the absence of such limitation of this prohibi-
tion, or of an express limitation of the agreement to defend,
ii is reasonable to infer that an express provision to that effect
would have been inserted if the parties understood that after the
insurance company had conducted the suit to judgment they
should then stand aside and call in the assured and require him
to advance money to pay the verdict, which they would instantly
be required to pay to him.
If a correct construction of clause 8 is that the only obligation
of the company is to reimburse the insured for money paid to
satisfy a judgment obtained against him, there would seem to
be a contradiction in terms. The insured's loss from the liabil-
ity insured against, if he defends the suit himself, would con-
sist of the amount of the judgment and the expense of contest-
ing the claim : Eoss v. American Employers'* etc. Co., 56 N.
J. Eq. 41, 38 Atl. 22. Having agreed upon an indemnity
against all loss, and having especially agreed that the insured
should be relieved of all expense of contesting legal proceedings,
it is not probable that the parties understood that the perform-
ance of this part of the agreement should be dependent upon the
caprice of the insurance company, without legal remedy to the
insured for its nonperformance. Neither is it probable that it
would have been thought ncecssarv to make the payment of in-
demnity dependent upon a trial of the issue, when the insurer
had in fact tried the issue. Whether the provisions of a con-
tract are reasonable or unreasonable — whether the engagements
into which the parties have entered are such as would probal)ly
be made in like circumstances — is, as the defendants claim, im-
material when the agreement of the parties is one which tliey
have power to make and is declared in plain unmistakable lan-
guage. But when the evidence of the agreement furnished by
C96 America2s^ State Eeports^ Vol. 101. [N. H.
the written contract is not plain and unmistakable, but is open
to more than one interpretation, the reasonableness of one mean-
ing as compared with the other, "^^^ and the probability that
men in the circumstances of the parties would enter into one
agreement or the other, is competent for consideration on the
question what the agreement was which the written contract
e.-tablishes: Kendall v. Green, 67 X. H. 557, 42 x\tl. 178. The
substance of clauses 2 and 3 is, that upon notice of legal pro-
ceedings founded upon an accident covered by the policy the
insurance company will take over the management of the suit,
assume and discharge the risk, reserving the right at any time
to terminate the liability by the payment of the indemnity or
such part of it as they might agree upon with the assured, as
was done in Bain v. Atkins, 181 Mass. 240, 92 Am. St. Eep. 411^
G3 N". E. 414, 57 L. E. A. 791. These clauses apply only upon
a loss covered by the policy. If the company proceeded there-
under, they might be estopped to deny their liability : Glen Falls
etc. Co. V. Travelers' Ins. Co., 11 N. Y. App. Div. 411, 42 X.
Y. Supp. 285.
The purpose and meaning of clause 8 is apparent upon consid-
eration of the situation which the parties must have contem-
plated as a probable result of their engagements. It is not
proljable that the parties contemplated and attempted to pro-
vide for the contingency of a suit between themselves upon a
claim as to which the liability of the insurance company was
conceded. An inspection of the policy, which is made a part of
the case, discloses a "special agreement'' B and '"general agree-
ments" 4 and 5, to the effect that the policy does not cover cer-
tain accidental injuries for which the insured might become
lial)le. Whether the policy covered a particular accident, was a
(juestion as to which it could be foreseen controversy might arise.
it was, tlierefore, within the contemplation of the parties tliat a
suit miglit be brought against the insured for accidental injuries
not covered by the policy. No claim except for immediate sur-
gical relief could accrue against the company Avithout notice of
a suit. U])on the receipt of such notice, the company was called
upon to recognize or deny liability. If thev denied their lia-
liility, and refused to perform thoir contract of indemnity in
llic manner sj)ecified in clause 2, sucli decision would not be
binding upon tlie assured; and in a controversy between the
jnuties. tlu' assumption of the defense by the companv migjit be
considered to Ijc an admission of liability under the poJicv.
There was no reason why they should defend if not liable. The
Mar. 1904.] Sanders v. Frankfort Marine etc. Ins. Co. G97
purpose of clause 8 was, therefore, to provide for the cases, if
any should arise, where the company contended the claim arose
from an accident not covered by the policy. It was intended to
limit the liability of the company to damages ascertained by due
course of judicial procedure in cases where they could not con-
duct the defense without waiving their claim that they were not
liable, and as to which, if not liable, they were under no obliga-
tion to incur any expense. Its purpose was to prevent collusion
between the plaintiff and the assured.
■^^^ In this case the insurance company undertook the in-
\estigation of the case, and, after suit was brought, assumed the
entire defense by their counsel and conducted the same to final
judgment. The present action is not one respecting a loss by
the insured under the policy. The defendants' contention that
the assured have lost nothing because they have paid nothing
may, so far as the case is concerned, be conceded. The proceed-
ing is not even to enforce the agreement of the policy, to assume
the liability ; but the plaintiff's case stands upon the legal result
of the assumption of liability by the company. Because they
assumed — in legal effect agreed to pay — ^the assured's liability
to this plaintiff to the extent of five thousand dollars, equity re-
quires them to perform their agreement by payment to him. It
may also be conceded, though it cannot be decided in this case,
that if the insurers had denied liability for any claim arising out
of the plaintiff's injury, or had refused to take charge of the
suit, no action could have been maintained against them except
by the assured upon payment of a judgment after a trial of the
issue. The defendants' construction of the policy may to this
extent be correct, but it has no application to the present ease.
Counsel for the insurance company, in their brief, reach the
conclusion that clause 8 docs not prevent an action by the as-
sured for breach of the agreement to defend. It is immaterial
•\\hetlicr this conclusion is best founded upon a definition of the
word ''loss" — upon wlietlior it means *'claim for damages"'
merely, or both that and the cost of litigation — or upon the
ground that the contract cannot be understood at the same time
tn give a right and prohil)it its enforcement. It is sufTicicnt
tliat on one groimd or the otlicr clause 8 cannot be construed to
]n'ohibit an action for a breach of the contract to defend. If it
does not, neither does it prohibit an action for breach of the
engagements to settle or pay tlie inden;!nity to the assured con-
tained in the same clause. If none of these enga<rements have
698 American State Reports^ Vol. 101. [N. H.
been performed, the existence of a subsisting obligation on the
part of the insurance company is established.
The defendants urge that there is a greater risk of unfavor-
able verdicts and of greater verdicts in suits like the plaintiff's
against the paper company when the defendant is insolvent and
not a going concern, and that the policy was intended to pro-
tect against this risk by providing that there should be no lia-
bility for any policy holder who was unable to pay the judgment.
The difficulty with this argument is that it is not the inability
to make payment, but the nonpayment, which the construction
claimed would make materiaL If it was intended that insol-
vency at the time of the trial should avoid the policy, a pro-
vision to that effect could easily have been inserted.
500 rpY^Q insurers chose to protect tlieraselves from that class
of business by declining it, instead of providing for the con-
tingency in the policy, or adjusting the premiums charged wdth
reference thereto. The insolvency which prevents payment is
insolvency after judgment, and not during the trial, and might,
as was the case in Bain v. Atkins, 181 Mass. 2-10, 92 Am. St.
Eep. 411, 63 X. E. 414, 57 L. R. A. 792, be produced by the
judgment itself. It does not necessarily follow that because
an insured was insolvent he could not arrange for a payment
of such a claim. The provision would be entirely ineffective
to guard against the risks of insolvency, whatever they are.
The paper company are not in bankruptcy. There is nothing
to prevent their making some payment to the plaintiff, if not
more than the dollar which has already been paid by the sale
of tlieir property, and which at least, on the defendants' own
contention, they arc now legally liable to pay. Every dollar
paid over l)y the paper company would establish a fresh obli-
gation of the insurance company to pay until the five thousand
dollar limit was reached. Insolvency merely could not be a
])ractical defense against the will of the assured. To ciTect the
})urpose for which it is claimed the provision was inserted, it
would be necessary to limit the insurers' liability to the reim-
bursement of the insured for the value of his property sold un-
der execution in a suit upon a claim covered by the policy. It
is not probable the ol)ject of the provision was a purpose it is
so ill-adapted to effect.
Great stress has been placed upon the two decisions u])on
like policies in >>'e\v Jersey and Elaine. Frye v. Bath etc. Co.,
97 Me. 241, 94 Am. St. Bep. 500. 54 AtL 395, 59 L. R. A. 444;
Travelers' Ins. Co. v. :\lo.~cs, 03 X. J. Eq. 2G0, 92 Am. St. Rep.
Mar. 1904.] Sanders v. Frankfort Marine etc. Ins. Co. 699
6G3, 49 Atl. 720. In neither of these cases, as has been stated,
was any attention given to the stipulations as to the manner
in which the contract of indemnity was to be performed, while
in the ]\Iaine case the parties apparently abandoned these provi-
sions of the contract, for the defense of the original suit was
not conducted in accordance with the terms of the present con-
tract, but by the assured and the insurers jointly, and the ques-
tion of the effect of the assumption of the defense and sole
c-cntrol of the original suit was not and could not have been
raised.
The weight of the ^'"ew Jersey case as an authority is dimin-
ished by the opinion in the court of chancery holding the con-
trary view, which is more in accord with the authorities on the
question in this jurisdiction to which reference has been made.
Notwithstanding the respect due to the opinions of these courts,
the results reached in them cannot be followed in this jurisdic-
tion. The proceeding is in equity and not at law. The facts
that the plaintiff is in no way a party to the contract of in-
demnity, that he paid no part of the consideration, that the
contract was one exclusively '^^^ between the paper company
and the insurance company for the protection of the former,
upon which reliance is placed, are not decisive in equity. In
Holt V. Penacook Sav. Bank, 63 N. H. 55. Holt was not a
party to the mortgage which he sought to enforce. It was not
miade for his benefit, but to indemnify Gage from his liabil-
ity as surety. Gage had never Ijeen and could not be damni-
fied, because it had tieen judieiallv determined that he was not
liable to the plaintiff; but Holt's right to the provision that
had been made by his debtor for tlie ultimate discharge of his
debt in case the surety paid was maintained. The ground
upon which the plaintiff's equitable right to tlie provision marlo
by his debtor for the ultimate discharge of a claim wliich might
arise against him can, consistently with the authorities in this
state, be denied, is not apparent. Xoitlior is it clear tliat the
paper company, while unable to maintain an action at law
upon the policy without payment of the judgment against them,
might not in equity obtain such a performance of the contract
of indemnity as would protect them without such prior payment.
There are authorities in this state and elsewliere tending to
sustain power in equity to compel the specific performance of
a contract to indemnify before there has been such a breacli of
the contract as would sustain an action at law. "In equity,"
it is said, "the plaintiff' need not pay and perhaps ruin him-
700 American State REroRTS, Vol. 101. [X. H.
self before seeking relief. He is entitled to be relieved from
liability" : Jobnston v. Salvacre Assn., L. R. 19 Q. B. Div. 458,
460. See, also, Hunt v. Xew Hampsbire Fire etc. Assn., 68
N. H. 305, 73 Am. St. Rep. 602, 38 Atl. 145, 38 L. R. A. 514,
and cases cited ; First Nat. Bank v. Hunton, 70 X. H. 224,
46 Atl. 1049; Cbampion v. Brown, 6 Jolms. Ch. 398, 10 Am.
Dec. 343; Burrougbs v. McXeill, 2 Dev. & B. Eq. (22 X. C.)
297, 302; Central Trust Co. v. Louisville Trust Co., 87 Fed.
23; Ranlaugh v. Hayes, 1 Yern. 190; Lacey v. Hill, L. R. 18
Eq. 182; Wolmershauson v. Gullick [1893], 2 Cb. 514; Cruso
V. Paine, L. R. 6 Eq. 641, 4 Cb. App. 441; Story's Equity
Jurisprudence, sec. 850; Bisbop's Equity, sec. 331; Lindley
on Partncrsbip, 375.
Except for tbe provision that tlie damages must be ascer-
tained by a judgment after a trial of the issue (immaterial in
tl)is case, because such trial bad been bad), clause 8 is a mere
statement of the law. Tbe surety cannot sue tbe principal until
be bas paid the debt; but that does not prevent the interposition
of equity to require tbe principal to pay and save the surety
harmless.
But it appears sufficient to rest the decision upon an inter-
pretation of tbe contract which gives effect to all its provisions,,
avoids any conflict between tbem, and is fairly and reasonably
inferable from the evidence. The view that the contract means
that tbe insurance company, after taking control of the pro-
ceedings in a suit against the assured, cannot thereafter be dis-
charged except by payment of tbe indemnity to the assured or
securing his discharge ^**^ from tbe claim, is thought to best
conform to tbe intent of tbe j)arties, and is adopted. Wbether
in a case wliere the company did not so proceed the assured could
in anv form of procedure obtain any benefit from tbe contract
of indemnity, except upon proof of tbe payment of damages
after a trial of tlie issue, is not now before the court.
Decree for tbe plaintiff.
"Walker, J., did not sit; tbe otlicrs concurred.
For AuthorillcH bonrinfr upon tlio docision in tlio }>rinpipal oaso, see
American Emplovfrs' LiaMlity Ins. Co. v. Fordvoe, (ii' Ark. 562,
.'4 Am. St. Kfp. ;Kj5, 30 S. W. 10.-,1; Travelers' Ins Co v. Moses, 03
N. J. Kri. L'OO. r,2 Am. St. K.'p. OO.I, 49 Atl. 720; ^\V.^(•estpr ete. Rv.
Co. V. Travel. Ts" Tns. Co.. 1^(1 :Nfass. 2(i3. 91 Am. St. Rep. 275 02
N. v.. SG4. 57 I.. ];. A. 029: P.ain v. Atkins, ISl :Mass. 240. 92 Am.
St. Kep. 411. 0.'; X. K. 414, 57 L. R. A. 791; Kansas Citv etc. R. R.
'■.'. V. Soiitliern Ry. Xrws Co., 151 AIo. 373, 74 Am. St. Rep. 545 52
S. W. 205, 45 L. R. A. 380. '
CASES
IN THE
COUET OF ERRORS AND APPEALS
OF
NEW JERSEY.
MECHANICS' BANK v. CHAEDxVYOYNE.
[69 A^ J. L. 256, 55 At]. 1080.]
NEGOTIABLE INSTRUMENTS — Indorsement in Blank.— One
•who indorses a note in blank and intrusts it to another to till up
and have discounted for the indorser's benefit, is liable upon it to
a bona fide holder for value, who receives it before maturity, in the
usual course of business, from the person to whom it was intrusted,
notwithstanding that the latter filled it up for, and fraudulently con-
verted it to, a purpose entirelv different from that for which he
was authorized to use it. (p. 705.)
NEGOTIABLE INSTRURIENTS— Indorsement in Blank—
Bona Fide Holder. — If a bank receives a note in the regular course of
business, in good faith and without notice of any infirmity in it,
in payment of an indebtedness due from the person sending it, whose
wife has indorsed it in blank, and intrusted it to him to discount for
her benefit, the bank thereby becomes a bona fide holder of the note
for value, and entitled to protection as such as against the wife of
the sender of the note. (p. 705.)
Lam1)crt & Stewart^ for the plaintiff in error.
A. C. Wall, for the defendant in error.
"^"^ GV^niVAlE, C. J. This suit was ])roiight against Will-
iam S. Chardavoyne and Annie N., his wife, upon a promis-
sory note made l)y William to the order of Annie, and indorsed
by her. The note is dated Xewark, July 28, 1899, and is pay-
able at the ]\rec]ianics' Bank, Brooklyn, New York. The case
was tried by the court without a jury, by consent of the parties
The following are the pertinent facts found by the trial court :
Mrs. Chardavoyne, about ten days or two weeks Ixjfore July 2S.
1899, intrusted her husband with a blank form of promissory
("01)
703 Ameeican State Kepobts, Vol. 101. [New Jersey^
note, indorsed by her, to be filled np and signed by him, and
used at the German National Bank of Newark, to obtain a loan
for Mrs. Chardavoyne. The German National Bank refused
to discount the note, and its refusal was reported to her. She
never authorized her husband to use the note for any other pur-
]iose. Notwithstanding this fact, he, on the twenty-eighth day
of July, took the blank note to the banking-house of the plain-
tiff company, in Brooklyn, New York, and the body of the
instrument was then filled up by the plaintiff's president, at
tlie request of Mr. Chardavoyne, for a sum equal to the amount
of an indebtedness due from ^^® Mr. Chardavoyne to the
plaintiff. The next day the note was discounted by the
}>laintiff. and the proceeds placed to Mr. Chardavoyne's credit.
The president of the bank, when he filled up the note, was
ignorant of the fact that it had been indorsed in blank by
^Irs. Chardavoyne, and the plaintiff took it, in the regular
course of business, in good faith, without notice of any infirm-
ity in it, and in payment of the indebtedness then due to it
from Mr. Chardavo}Tie. On this finding of facts judgment
was entered for the plaintiff against both the maker and in-
dorser of the note. The writ of error is sued out by the in-
dorser, ^Irs. Chardavo}Tie, alone.
The principal ground upon which we are asked to reverse
tliis judgment is that, upon the facts found, no liability on
the part of Mrs. Chardavoyne can be predicated. The con-
tention is that her husband had no authority to fill up the
note, except for the purpose of having it discounted at the
German National Bank for her benefit; that when this pur-
]iose failed hei* hus])and's agency ceased, and her indorsement
became a nullity, and that his subsequent fraudulent act in
l.aving the blanks in the note filled up, and then appropriating
it to the pavmcnt of his own indebtedness, did not render her
responsible thereon as indorser.
An examination of the authorities, however, will disclose
that tliis contention is untenal)le. The question to be deter-
mined in a case like the present is not what is the actual limit
of authority conferred by the indorser of a blank note upon
the person into whose hands she delivers it. but rather, what
autliority sufh an indorser. by lior conduct, holds out that per-
son as possessing, to one who takes the note in good faith, for
value, and without notice that the actual authority conferred
is a limited one only: and therefore, as is stated by Mr. Par-
sons (1 Parsons on Bills and Notes, 110), "it is no defense
July, 1903.] Mechanics'' Bank v. Chardavoyne. 703
against a bona fide older, for value, to prove either that the
person to whom the instrument was intrusted in blank had
no authority at all to fill the blank; or that his authority was
limited to a certain sum which he had exceeded; or that he
was only authorized to use the paper for a particular purpose,
and had fraudulently converted it to a different purpose; or
^^^ that he was only authorized to fill the blank upon a certain
condition, which had not happened; or that the authority was
limited in point of time, and that the time had expired." Prac-
tically the same statement appears in 1 Daniel on Negotiable
Instruments, section 143, where it is said that "the authority
implied by a signature in blank, and the credit granted, are so
extensive that the party so signing will be bound, though the
holder was only authorized to use it for one purpose, and has
perverted it to another; and though the authority was limited
to a time which has expired, or was only to be exercised upon
a condition which has not happened."
The decided cases fully support the rule laid down by tliese
authors.
As early as 1780, Lord Mansfield, in Eussel v. Langstaffe,
Doug. 514, declared that "the indorsement on a blank note
is a letter of credit for an indefinite amount. By it the in-
dorser says: 'Trust G. [the person who received the note from
the indorser] to any amount, and I will be his security.' It
does not lie in his mouth to say that the indorsement is not
regular."
In Gerrard v. Lewis, L. E. 10 Q. B. Div. 30, it was held
that "a man who gives his acceptance [to a bill of exchange]
in blank, holds out the person to whom it is intrusted as clothed
with ostensible authority to fill in the bill as he pleases."
In Bank of Pittsburg v. Neal, G3 U. S. (22 How.) 96, 16
L. ed. 323, it was held that "where a party to a negotiable in-
strument intrusts it to the custody of another, with blanks not
filled up, whether it be for the purpose to accommodate the
person to whom it was intrusted, or to be used for his own
l,enefit, such negotiable instrument carries on its face an im-
plied authority to fill up the blanks and perfect the instrument,"
and that "a bona fide holder of such an instrument, for valua-
ble consideration, without notice of the facts which impeach its
validity between the antecedent parties, if he takes it before
the same becomes due, holds the title unafi:ected by these facts,
and may recover thereon."
704 American State Reports, A'ol. 101. [Xew Jersey,
In Michigan Bank v. Eldrcd, 7G U. S. (9 Wall.) 544, 19
L. ed. 763, it is declared ^*^^ to be "well-settled law that where
a party to a negotiable bill of exchange or promissory note,
containing blanks, intrusts it to the custody of another, whether
it be for the purpose of accommodating the person to whom it
was intrusted or to be used to raise money for his own benefit,
snch bill or note especially if it be indorsed in blank, carries
on its face an implied authority in the person to wliom it is so
intrusted to fill up the l)lanks in liis discretion; and as between
such party to the lull or note, and innocent tliird parties hold-
ing the bill or note as transferees for value, in the usual course
of business, the person to whom it is so intrusted must he
deemed to bo the a^ent of the party who committed such bill
or note to his custody ; and the legal conclusion is that he acted
under the authority of that party, and with his approbation and
consent."
In Van Duzer v. ITowe, 21 X. Y. 531, it was decided that
*"a party wlio intrusts another witli his acceptance in blank is
responsiV)le to a bona fide holder, although the blank is filled
"with a sum exceeding that fixed as a limit by the acceptor."
In Eedlich v. Doll'. 54 X. Y. 235. 13 Am. Eep. 573, the rule
is stated to be that "if a note be obtained from a nuikcr i'V
fraud ; if it be made for one purpose and used by the holder for
another; if it be delivered in lilank, with an agreement that the
blank shall be filled in one way, and il be filled in anotli.cr;
iii all these cases the maker is liable to a liona fide holder For
value. The maker, rather than the innocent holder, must suf-
fer for his negligence or misplaced conndence."
In Putnam v. Sullivan. 4 Mass. ]5. 3 Am. Doc. 20(1, it was
held that "where a mercliant intrTists his clerk with his Mank
indorsements. and one bv false pretenses ol)tains and uses tliom
(bv writing and signing promissory notes u]ion the face of tlio
blanks) such fraudulent use of thorn will not discharge the
indorser against an innocent indorsee."
In Greenfield Bank v. Stowell, 123 Mass. 190, 25 Am. "Rep.
67, the rule is laid down that "if a num indorses a ])lank form
of note, and delivers it with the intention that the blank should
be, filled, ho thcrebv makes the person to whom he delivers it
his agent. *"^ and is rosjxuisible for whatever date, sum or
time of payment he mav insert, to a bona fide indorsee."
In Breckenridge v. Lewis, 84 :\[e. 349, 30 Am. St. Ifep. 353,
24 Atl. 864. it was decided that "one who intrusts his signature
to another for commercial use — that is, to have some business
July, 1903.] Mechanics' Baxk v. Chardavoyne. 705
obligation written over it, becomes holden upon a negotiable
promissory note fraudulently so written by the person so in-
trusted with it, and negotiated to an innocent holder."
It is unnecessary to multiply authorities. Enough have been
cited to make it clear that one who indorses a promissory note
in blank and intrusts it to another to fill it up and have it
•discounted for his (the indorser's) benefit, is liable upon it
to a bona fide holder for value, who receives it before maturity,
in the usual course of business, from the person to whom it was
intrusted, notwithstanding that the latter has filled it up for,
and fraudulently converted it to, a purpose entirely different
from that for which he was authorized to use it. Commercial
paper is a part of the mercantile currency of the country, and
in order that its free circulation may not be impeded, it is the
settled policy of the law that innocent holders thereof, for
value, should have a right to enforce payment of such paper
against those who, by signing or indorsing it, either in blank
or otherwise, have caused it to become a part of such currency.
It is further contended on behalf of the plaintiff in error
that if it be considered that the indorser of a blank promissory
note is liable to a bona fide holder, for value, under the cir-
cumstances existing in the present case, still the plaintiff bank
is not entitled to recover against her, because it does not occupy
that position. The fact is established by the finding of the
trial court, as has already been stated, that the plaintiff bank
took the note '"'in the regular course of business, in good faith,
without notice of any infirmity in it." It is, therefore, a bona
fide holder. The trial court further found that the bank
took the note "in payment of an indebtedness then due" to it.
So far as this state is concerned, the rule is entirely settled that
a party taking a promissory note in payment of an antecedent
debt is a holder of such note for a valuable ^^' consideration,
and entitled to protection as such: Allaire v. Ilartshorne, 21 X.
J. L. 6G5, 47 Am. Dec. 175; Duncan Shennan & Co. v. Gilbert,
29 X. J. L. 527. But, as the transaction out of which the
plaintiff'"s right sprang took place in Xew York, the question
to be determined is Avhcther, by the law of that jurisdiction,
one who so takes a promissory note is a holder for value. The
plaintiff in error insists that the rule established in that state
is tliat where the holder has received the paper as payment for
an antecedent debt he is not such a holder, and refers us to
a declaration to that effect contained in the opinion of ilii?
court in Duncan Sherman & Co. v. Gilljcrt, 29 X. J. L, 523.
Am. St. Rep., Vol. 101-45
706 American State Eeports^ Vol. 101. [New Jersey^
No authority for this statement is cited in the opinion referred
to, and an examination of the New York cases do not justify
it.
On the contrary, the New York decisions on this subject,
so far as we have been able to ascertain by an examination of
the published reports of such decisions, are in entire harmony
with our own. In 1840, more than twenty years prior to the
decision in Duncan Sherman & Co. v. Gilbert, the supreme court
of New York, in the case of Bank of St. Albans v. Gilliland,
33 Wend. 311, 35 Am. Dec. 566, held that "receiving a note
for a precedent debt is receiving it for value, within the law-
merchant, if it be taken in satisfaction of such precedent debt,
and the indebtedness be canceled." To the same effect is the
decision of the court of appeals in Brown v. Leavitt, 31 N.
Y. 113, and in the later case of Phoenix Ins. Co. v. Church,
81 N. Y. 218, 37 Am. Eep. 494, and Mayer v. Heidelbach, 123
N. Y. 332, 25 N. E. 416, 9 L. R. A. 850.
It is further urged on behalf of the plaintiff in error that
as she received nothing for her indorsement, she is, at most,
an accommodation indorser, and that section 5 of our married
women's act (Gen. Stats., p. 2017) exempts her from liability
on such a contract. In disposing of this contention it is
enough to say that it has already been decided by this court
that where a note, upon which a married women puts her name,
m this state, first comes into legal existence in the state of
New York (as was the present case), the statutory provision ap-
pealed to affords her no protection: Thompson v. Taylor, 66
X. J. L. 253, 88 Am. St. Eep. 485, 49 Atl. 544, 54 L. E. A.
585.
^^^ The only other ground upon which the validitv of the
jiidgment below is attacked is based u}X)n the claim sot \\p hv
the plaintiff in error at the trial of the cause, that at the time
of the transaction between her Imsband and the bank tlie former
was insane, the contention being tliat the court erred in its
b.olding witb regard to tlie measure of liability upon contracts
made ])y insane persons. It is quite immaterial, however,
wlietbcr s)icli error occurred or not. Tlio trial court found
as a fact tliat tbe husband of the plaintiff in error was not
insane at tlie time wben he delivered tbe note in suit to the
plaintiff; and, as tbe testimony produced on tlie sul)3ect of
Cbardavoyne's sanity Avas amply sufficient to support tills find-
ing, it must be accepted by this court. Consequently, the ques-
June, 1903.] Heidecamp v. Jersey City etc. Ry. Co. 707
tion of the measure of liability, under the conditions men-
tioned, is not involved in the decision of the case.
The judgment under review should be affirmed.
As to the Legal Effect of a Blank Indorsement of a negotiable note,
see First Nat. Bank v. Payne, 111 Mo. 291, 33 Am. St. Rep. 520, 20 S.
W, 41; Dennis v. Jackson, 57 Minn. 286, 47 Am. St. Rep. 603, 59 N.
W. 198; Scollans v. Rollins, 173 Mass. 275, 73 Am. St. Rep. 284, 53
N. E. 863.
The Alteration of Instruments by filling blanks therein discussed in
the monographic note to Burgess v. Blake, 86 Am. St. Rep. 107-112.
A reference to this note will show that where one has intrusted an
instrument containing blanks to another with the intent to become
bound thereon, he will be liable upon the instrument though the
blanks be filled. He is deemed to have given an implied authority
to the payee or holder to fill the blanks with the proper terms: See,
also, Boston Steel etc. Co. v. Steuer, 180 Mass. 140, 97 Am. St. Rep.
426, 66 N. E. 646.
HEIDECAMP V. JEESEY CITY, HOBOKEI^ AND PAT-
TERSON STREET RAILWAY COMPANY.
[69 N. J. L. 284, 55 Atl. 239.]
PARENT AND CHILD— Adopted Children.— Next of Kin of an
adopted child is the next of kin by blood and not the adopting parent,
under a statute concerning adoption which wholly fails to bestow
upon the adopting parent any right to inherit the estate of the
adopted child, (pp. 708, 709.)
J. F. Mintburn, for the plaintiff in error.
W. D. Edwards, for the defendant in error.
284 VAN SYCKEL, J. This suit is brought by John
Heidecamp, administrator of Annie Heidecamp, deceased, un-
der our death act, for the benefit of the next of kin.
Previously to the injury which caused hei' death Annie had
been adopted as the daughter of the plaintiff, under the "act
concerning the adoption of infants," with the written consent
of the mother.
280 rpi^Q ^pjj^i court held that tlie adopting father was not the
next of kin, and that the natural mother could recover nomi-
nal damages only, and a verdict was directed accordinglv. The
plaintiff below is the plaintiff in error. The question to be
reviewed is whether this instruction of the trial court is cor-
rect.
708 A:^rERiCAN State Reports^ Vol. 101. [Xew Jersey,
Our death act, imder which this suit is prosecuted, pro-
vides that the action shall be for the exclusive benefit of the
■widow and next of kin of such deceased person, and the sum
recovered shall be distributed to such widow and next of kin
in the proportions provided by law in relation to the distribu-
tion of personal property left by persons dying intestate.
The next of kin in this act must be held to mean the next
of kin by blood, unless the "act concerning the adoption of
infants" impresses upon tlie term a different meaning as ap-
plicable to this case.
Our "act concerning adoption" (Gen. Stats., p. 1714, pi.
17) provides "that, upon the entry of tbe decree of adopti(m,
the parents of the child, if living, shall be devested of all legal
rights and obligations due from them to the child or children
or from the child or children to thorn; and the child or children
sliall be free from all legal oliligations of oljedience or (other-
wise to the ])arents; and the adopting parent or parents of the
child or children shall be invested with every legal right in
respect to obedience and maintenance on the part of the child
or cliildren as if said child or children had been born to tlicin
in lawful wtMllotk; and the child or children sluill he invested
with every legal right, privilege, o])ligation and relation in re-
spect to education, maintenance and the rights of inlun-itance
io real estate or to the distril)ution in ix-rsonal estate on the
death of such ado}>ting parent or parents as if Ijorn to them
in lawful wedlock."
The statute exjn-essly invests the adopting parent with every
legal right in respect to obedience and maintenance on th(> part
of the cliild as if the child had been born to them in lav.ful
wedlock, but it wliolly fails to bestow u])on tlu) -'^^'' addicting
parent any riglit to inherit tlie estate of the adopted chihl.
That the draftsman of the act did not intend to confer anv
such projiertv right upon the adopting ])arent is emphasize'!
by the immediately succeeding pi-ovision that the adopted child
sliall he invested with every legal right, ])rivilege, obligation
and relation in respect to education, maintenance and the riglits
of inheritance to real estate or to the distribution in personal
estate, on the death of the adopting ])arents as if born to theui
in lawful w(Mlloek.
The statute further provides tliat. on the deatli of tlie adopt-
inLT {>arent and the suh-coucnt death of the ado{)ted child with-
out issue, the pro2»erty of such adopting deceased parent shall
June, 1903.] Heidecamp v. Jersey City etc, Ey. Co. 709
descend to, and be distributed among, the next of kin of said
parent, and not to the next of kin of the adopted child.
The adopting father is therefore excluded from inheriting,
as the next of kin of the adopted child, not only by the failure
of the statute to invest him with such right, but also by the
declaration that, in determining who are the next of kin of
the adopted child, regard is not to be paid to the fact of adop-
tion; the next of kin of the adopted child are his next of kin
by blood.
I have found no authority which will justify a different in-
terpretation of our statutes.
Barnes v. Allen, 25 Ind. 222, holds that adopted children
are the heirs of adopting father in the degree of children, and
are entitled to inherit from him. Xo other construction could
be given to the Indiana statute, which provides that the adopted
child shall have the same interest in the estate of adopting
parent, by descent or otherwise, as if the natural heir of such
parent.
The question whether the adopting father could inherit from
the child is not involved or discussed in the case.
In Barnshisel v. Terrell, 47 Ind. 335, the court expressly de-
clares that, as between the adopted child and the lawful chil-
dren of the adopting parent, tlie legal relation as to inheri-
tance is not changed or affected by the adoption; that on
^^^ the death of the adopted child, his next of kin by blood
take from him.
In Davis v. King, 95 Ind. 1, it appears that, in 1883, the
Indiana statute was amended by providing tbat property, real
and personal, which came to the adopted child by gift, devise
or descent from the adopting parent should, on the death of
the child, go to the heirs of the adopting parent, the same as
if such child had not been adopted.
The right of the adopting parent to succeed as next of kin
to the child was not in this case.
In Eemders v. Koppelman, 08 Mo, 482, 30 Am. Eep. 802,
the ^Missouri court expressly ruled that, on the death of the
adopted child, his estate will go to his relations by blood, and
not to those by adoption. This interpretation was based by
the court upon the fact that the statute of that state does not
].vovide who shall inherit from tlie adopted child, but only that
the adopted child shall inherit from the adopting parent.
Delano v. Bruerton, 148 Mass. G19. 20 X. E. 308, 2 L. E. A.
698, Warren v. Prescott, 84 Me. 483, 30 Am. St. Eep. 370,
710 American State Reports^ Vol. 101. [New Jersey,
24 Atl. 948, 17 L. E. A. 435, and Ilartwell v. Toft, 19 R. I.
644, 35 Atl. 882, 34 L. R. A. 500, give no support to the
claim of the adopting parent.
John Ileidecanip, therefore, cannot be regarded as the next
of kin, and the action can be maintained only in the right
of the natural mother of the deceased child^ who is, under our
law, the next of kin. She had abandoned her child and re-
leased all claims to her services, and was therefore legally en-
titled to no substantial damages. If it was error to direct a
verdict for nominal damages, tlie plaintiff in error cannot com-
plain.
There is no error in the direction of the trial court wliich
was injurious to the plaintiff, and the judgment should there-
fore be affirmed.
For AiitlinrHies Brarini on the decision in the principal case, see
the monographic notes to Van Matre v. Sankey, 39 Am. St. Rep.
226; In re Ingram, 12 Am. St. Eep. 100; and the subsequent eases of
Quinn v. Quinn, 5 S. Dak. 32S. 49 Am. St. Eep. S7.o, 58 N. W. SOS;
Clarkson v. Hatton, 143 Mo. 47, do Am. St. Eep. 635, 44 S. W. 761,
39 L. E. A. 748; Phillips v. McConica, 59 Ohio St. 1, 69 Am. St. Eep.
753, 51 N. E. 445; Butterfield v. Sawver, 187 111. 598, 79 Am. St. Eep.
246, 58 N. E. 602, 52 L. E. A. 75.
EXRKillT V. OLIVER.
[69 X. J. L. 357, 55 Atl. 277.]
MASTER AND SERVANT— Negligence of FeUow-servant.—
Employes of a fommon master engaged in a eonimon employment of
erecting a building or other structure are all fellow-servants, and
if injury occurs to one of such employes by reason of negligent con-
struction, caused by the carelessness of a coemploye, the master is
not liable, (p. 712.)
MASTER AND SERVANT— Negligence of Fellow-servant.— If
the master has furnislied a sufliciency of safe appliances to select
from in the construction of a building, he is not liable for an injury
to an employs arising from the stdection by a fellow-servant of an
imperfect appliance not furnished by the master, (p. 714.)
MASTER AND SERVANT— Fellow-servants.— The Foreman of
employes of a common master engaged in a common iMiijdoymeut of
erecting a building is a fellow-servant with them while directing or
assisting them in the performance of the duties of the common em-
])lovment, and the master is not liable for the negligence of sue])
foreuum resulting in injury to one of such common employes, except
when his ai-ts relate to personal iluties due tlie emjdoye from the
master, and from which he cnnnot escape liability by delegating
them to another, fpp. 714. 715.)
MASTER AND SERVANT— Negligence of Incompetent Fel-
low-servant— Assumption of Risks. — If an injury to an employe grows
out of the negligence of his incompetent fellow-servant, and the con-
June, 1903.] Enright v. Oliver. 711
•ditions and his incompetency were known to the injured employ^, or
should have been known to him by the exercise of ordinary care be-
fore exposing himself to the danger complained of, and yet without
notice to the master, or seeking in any way to remedy such condi-
tions, he continued in the employment which resulted in the injury,
iie must be held to have assumed the risk as an obvious one, and can-
not recover of the master, (p. 716.)
MASTER AND SERVANT — Fellow-servants— Assumption of
Risks. — Servants employed by or under the control of the same master,
in a common employment, obviously, exposing them to injury from the
jiegligence of others so employed or controlled, although engaged
in different departments of the common business, are fellow-servants,
who assume the risk of each other's negligence, and cannot have
Tecourse to the master for any injury resulting therefrom, (pp. 71G,
717.)
W. Dixon, for the plaintiff in error.
Bell, Edwards & Lawrence, for the defendant in error.
258 HENDEICKSON, J. The plaintiff, who is a carpenter,
was engaged with other carpenters and with laborers in con-
structing center panels within tlic spaces made by the iron
cioss-beams of a large refrigerator building in Jersey City,
then in couise of erection, which were for the temporary sup-
port of a cone fete floor then being laid in the several stories
of the bnikiing. The work had progressed until the fourtli
floor had been reached, and the plaintiff, while engaged in nail-
ing ^59 ^i^g corners of a center panel, and in nailing and fit-
ting together the sheathing-boards that had been laid down
thereon, a defective support gave way under his weight, so that
he fell through the sheathing to the floor below and sustained
injuries thereby for whicli he brought suit against his em-
ployer, the defendant corporation.
The gravamen of the action was negligence in failing to pro-
,vide proper support to the floor or slieathing upon which the
plaintiff was working, and in failing to provide competent and
skillful employes to lay and construct such flooring and in fail-
ing to ])roperly inspect and maintain the same in a reasonably
safe and sound condition wliile the plaintiff was working tliere-
on in discharge of his duties.
At the close of the plaintiff's evidence at the trial motion
was made for a nonsuit, upon the ground, among others, that
the accident was the result of tlie negligence of a fellow-ser-
-vant. The learned judge ordered a nonsuit, observing that the
■case was eitlier witliin the ])rinci])le of Curley v. Iloff, 63 N".
■J. L. 759, 42 Atl. 731, or within that of Saunders v. Eastern
713 Ameeican State Reports^ Vol. 101. [New Jersey^
Hydraulic Co., 63 N. J. L. 554, 76 Am. St. Eep. 222, 44 Atl.
GoO. ^Ye have not stopped to detormine as to the applicancy
of these eases, for we can more appropriately, we think, invoke
in support of the nonsuit the doctrine of fellow-servant. It
is contended for the plaintiff that the defendant failed in his
duty to use reasonable care to provide for him a reasonably
safe place in which to work. But this duty of the master does
not api)ly where the place of work is one tliat the servants them-
selves undertake to erect and provide as one of the duties and
undertakings of their common employment. In such a case,
if any injury occurs to an employe by reason of negligent con-
struction, caused by the carelessness of a coemploye, the mas-
ter is not liable. This principle is clearly laid down by the
supn me court in Maher v. McGrath, 58 N. J. L. 469, 33 Atl.
943, and in this court in Olsen v. Xixon, 61 N. J. L. 671, 40
Atl. 694. The only liability that could fall upon the master
in such case would be for negligence in the selection of the
workmen. And the general rule is also well established that
employes of a common inaster, who are engaged in the com-
mon employment of erecting the same structure, ■*^*** are all
felluw-servants: 12 Am. & Eng. Ency. of Law, 1015, and note
2. where cases are cited. The same principle is recognized in
Maher v. McCJrath, 58 N. J. L. 469, 33 Atl. 945, where the
plaintiff was a laborer, who sued the master for injuries received
from the fall of a scaffold Avhile attending upon masons en-
gaged in constructing tlie walls of a brick building. One of
the questions to be considered in this case is, Was the plaintitf
injured through the fault of a coservant and not through the
fault of the master? Some further statement of the facts may
he helpful. The ]ianel referred to as to form of construction
is aptly described in tl.e case as being like a box without top
or bottom. It was about twenty feet by al)Out six feet in di-
mensioi':S and had a depth of eighteen inches. It rested upon
hangers secured upon the beams. I'j)on the sides of the panel
were also hangers or clips in which were laid putlogs. s])oken
of in the case as j^utlocks or footlofks. across the ])anel, upon
Mhich the sh.eathing was laid. The ])utlogs were five in num-
ber, and the sheathing was in two sections. In one section the
hoards were ahnnt fifteen feet in length and were met l)v the
hoards in the adjoiniuL'' softion, having a leng'ih of about five
or fix feet. The i oai-ds of tlie two sections were made so a»s to
Uicet upon the fonrt'i putlog. It is assumed tliat tins putlog,
by reason of the junction thereon of the two sections of the
June, 1903.] Enright v. Oliver. 713
sheathing, woulcl naturally be subjected to the greater weight
or strain from any encumbrance put upon it. The putlogs
were out of three by four inch lumber, thirteen feet long, and
in order to make three putlogs out of one piece of timber, the
third one in some cases had to be cut an inch short. To sup-
ply this deficiency in length furring strips of the required di-
mension were nailed at the end with three or four nails. In
placing the putlogs into the hangers or clips it was found that
one out of the five was a short one that had been pieced ; and
that was the fourth in order upon whieh the two sections of
the sheathing met. It was found after the accident that it was
this fourth putlog which gave way under the plaintiff's weight,
and while the putlog proper fell below, the furring strip had
split off and was found in the hanger. It is contended by the
plaintiff that ^^^ the master was negligent in furnishing im-
perfect and defective putlogs, and was also negligent in em-
ploying unskillful workmen in the persons of ordinary labor-
ers, who were attending upon the carpenters, to lay them down,
whereby the defective putlog was placed in such a {)osition as to
cause the accident to the plaintiff, which otherwise would not
have been at all likely to occur. And, first, as to the alleged
negligence of the master in furnishing some putlogs whicli were
])ieced at the end and alleged to be thereby rendered defective.
The putlogs were being made by some of the carpenters at work
on the job. They had cut a number of them an inch short, in
the way before stated, piecing them at the end, under the di-
rection of the foreman, and then the president of the defend-
ant company came along and stopped the cutting of any more
short putlogs ; and thereafter the practice was abandoned. The
short putlogs continued to be used, but as fast as the concrete
flooring laid upon the sheathing was set tlie temporary con-
struction underneath was withdrawn and tlie hiniljcr that re-
mained fit was used again in other centers, so tliat as tlie case
sliows. there were plenty of putlogs for use. and a sufficient
number at all times of the putlogs that were not pieced to
select from using the imperfect ones.
These putlogs were selected by one or more of the carpen-
ters, of whom there were at least six at work at the time of
the accident, and they were carried by the laV)orers. as were the
l)oaids and other materials u?od. and placed alongside the
]ianel for which thev were intended. Xow. regarding the put-
log as an ajipliance wliich it was the duty of the master to fur-
niili that would be reasonably ?afe for tb.e purpose designed —
71-i American State Reports^ Vol. 101. [New Jersey,
a duty that conld not be delegated — still it is well settled that,
where the master has furnished a suthciency of safe appliances
to select from, the master is not liable for an injury to an em-
ploye arising from the selection by a coservant of an imperfect
appliance not furnished by the master for the purpose. This
principle was laid down by this court in Maher v. Thropp, 51)
N. J. L. 186, 35 Atl. 1057, and in Guggenheim Smelting Co.
V. Flanigan, 62 N. J. L. 354, 41 Atl. 844, 42 Atl. 145. As
before shown, the corporation had, by its president, plainly con-
demned ^^^ the use of the pieced putlog, by directing the car-
}x;nters in charge of that work, and upon whom the duty of
scleetiou rested, to stop cutting and piecing putlogs in that
way.
But, upon another principle, the master cannot be held to
be negligent because there were imperfect putlogs upon the
premises that might be brought into use. This was an appli-
ance which the carpenters were to prepare, and did prepare,
out of materials furnished by the master, in the course of their
general wort. It is not disputed but that the material fur-
nished for the putlogs was of the proper quality and was suffi-
cient in quantity. It therefore follows, upon the principle
already stated, that any injury to a coemploye, by reason of
faulty construction, does not fall upon the master: ]\Ialier v.
McGrath, 58 N. J. L. 469, 33 Atl. 945. The fact that thoy
acted under the direction of the foreman in charge of the nion
in doing what tliey did does not affect the question of liability.
''J'lie foreman was. under the circumstances, a fellow-servant
with the other employes engaged in the common employment.
Tlie rule upon this subject is correctly laid down by the su-
preme court in O'Brien v. American Dredging Co., 53 X. J.
L. 291, 21 Atl. 32A. The decision has been apj)roved by this
i-i)urt in Maher v. 41ir()])p. 59 \. J. L. 1S6, 35 Atl. 105T, and
Olscn V. Xixon, 61 N. J. L. 671, 40 Atl. 694. This rule was
again very fully discussed and approved by the court of errors
and appeals in the recent case of Knutter v. New York etc.
Tel. Co.. 67 X. J. I.. 6 16. 52 Atl. 565, 58 L. R. A. 808. But,
perhaps, the better and more complete answer to the alleged
ground of liability on the part of the defendant, by reason of
its alleged negligence in connection with the cutting, making
and use of the imperfect putlog, may be found in this: That it
plainly appears that such negligence, if any, was not the proxi-
mate cause of the injury. It was proven by one of the car-
penters, who was the plaintiff's witness, that he had been a
June, 1903.] Enright v. Oliver. 715
carpenter for fifty years ; that he was employed upon this work,
and, under instructions from the foreman, he cut and prepared
putlogs and was so engaged when stopped by the president;
that they were pieced in a proper way; that this wai> often
done, but they did it for the prevention of ^^* lateral motion,
not for bearing; that the hearing of the short putlog would be
one inch without the furring strip; that the pieces were nailed
on with eight-penny nails; that they used three or four nails
in each piece, which together would stand a strain of eight or
nine hundred pounds. This was not contradicted, and there
was no evidence tending to show that the pieced putlogs were
not reasonably safe for use in any other of the places designated
for the putlogs, except the fourth place, where the boards of the
two sections of the sheathing joined. It was the improper
placing of the one pieced putlog at the point where there would
be the greatest strain in tlie whole panel that was, as it seems
to us, the proximate cause of the accident.
This being the situation, the only question remaining is, was
the faulty arrangement of the putlogs a breach of any duty
that belonged to the master, or was it the fault of a fellow-ser-
vant or of the plaintiff himself? The evidence does not show
that the master was present or participating in any way in the
construction and sheathing of the panels. Under the princi-
ples already stated, he had furnished the proper and necessary
materials for this work tliat was in charge of the carpenters and
laborers, under the direction of the foreman. He owed tliem
no duty thereafter in the conduct of this work. The only lia-
bility that could attach to him for an injury to an employe
so engaged would be wliere it arose from his failure to exor-
cise reasonable care in the employment of a coservant, who*e
negligence caused the injury. And this is t1ie chief, if not tlie
only, point of attack by the plaintitf in this part of the case.
His contention is that the ordinary laborers were directed or
permitted to, not only carry the putlogs to the panel in ques-
tion, but to lay them down in the clips — a duty which belonged
to the carpenters, and for which the laborers were incompetent;
that, if they had known how to do their work and had been prop-
erly instructed, the accident, in all probability, would not have
happened. It will be perceived that it is not claimed that the
master employed incompetent men, having regard to the par-
ticular work required of them, but rather that the ordinarv
^^'^ laborers, emploA^ed as attendants to wait upon the carpenters,
were ordered to do certain acts which, it is alleged, they were
716 American State Eepoets, Vol. 101. [New Jersey,
not qualified to perform. The laying down of the putlogs was
only the work of a helper, whose duty it was, also, to lay down
the boards loosely upon the putlogs, preparatory to the work of
the carpenters, whose duty it was to adjust, secure and complete
the structure, for which all the appliances and materials had
been prepared by them. As before stated, it was the duty of
the carpenters to select the putlogs to be carried to the panel,
and the case shows that, when the sides of the panel were in
p! ace and the putlogs and sheathing boards were laid down,,
the carpenters proceeded to nail the sides and ends together,,
to arrange the putlogs so that the fourth should be in place
so that the sheathing boards would properly meet upon it. The
]oo.<e boards upon both sections had to be adjusted, made tight
and nailed, so as to prevent any leakage of the concrete. The
case shows, and it is apparent from the situation, that, in per-
forming the details of the work thus outlined, the carpenters
must have seen the putlogs and the clips containing them. And
it was clearly their duty to see that the putlogs were in good
condition, suitable in character and properly placed to give the
support intended.
But even conceding that the conditions of danger which pre-
cipitated the plaintiffs injury grew out of negligence of the
coservant, as the result of his incompetency, since it plainly
aj)poare that these conditions were known to the plaintiff, or
should have been known to him by the exercise of ordinary care
before exposing himself to the danger complained of, and yet
tliat, without notice thereof to the master or seeking in any way
to remedy these conditions, he continued in the employment
which resulted in the injury, he must be held to have assumed
the risk as an obvious one, and cannot recover. The principla
involved in the proposition is so well established that the citation
of authorities will be unnecessary.
An effort has Ijeen made by the plaintiff to escape this
result of his own negligence and that of liis coservants upon
.'{(« ^|,g rrround tliat thougli he was engaged, at the time of his
injury, in doing this detail work on or about the panel on
the ground that lie did not know of the pieced putlogs, and
had no knowledge as to who were employed to lay down the
putlogs — a work that, some time before the accident, was per-
formed ])y the car])cnters. But the rule which governs, under
such circumstances, is this: That servants em])loyod by or under
the control of the same master, in a common employment ob-
viously exposing them to injury from the negligence of others
June, 1903.] Enright v. Oliver. 717
so employed or controlled, although engaged in different de-
partments of the common business, are fellow-servants, who as-
sume the risk of each other's negligence, and cannot have re-
course to the master for any injury resulting therefrom : O'Brien
V. American Dredging Co., 53 X. J. L. 291, 21 Atl. 324. We
think the plaintiff failed to show any actionable negligence of
the defendant as causing tlie injury complained of, and there-
fore the judgment of nonsuit must be affirmed, with costs.
On TT/fo are Fellow-srrravls, see the mono^aphic notes to Fox v,
Sandorf, 67 Am. Dee. 588-597; Fisk v. Central Pac. R. R. Co., 1 Am.
St. Eep. 2, 33. Tests for determining the question are given in the
recent cases of Chicago City Rv. Co. v. Leach, 208 111. 198, 100 Am.
St. Rep. 216, 70 N. E. 222; Kelly Island Lime etc. Co. v. Pachuta,
69 Ohio St. 4G2, 100 Am. St. Rep. 706, 69 N. E. 988; Grant v. Key-
stone Lumber Co., 119 Wis. 229, 100 Am. St. Rep. 883, 96 N. W. 535.
As to whether a foreman is a vice-principal or a fellow-servant with
the employes under him, see the monographic note to Mast v. Kern,
75 Am. St. Rep. 613-621, and the recent case of Kelly Island Lime
etc. Co. V. Pachuta, 69 Ohio St. 462, 69 N. E. 988, 100 Am. St. Rep.
706, and cases cited in the cross-reference note thereto.
An Emploj/er Owes to his Employee the duty to provide a reason-
ably safe place in which to work and reasonably safe tools and ap-
pliances: See the monographic note to Mast v. Kern, 75 Am. St. Rep.
591-595; Davis €oal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92
Am. St. Rep. 319, and cases cited in the cross-reference note thereto.
If an employe is injured by the failure of his employer to furnish
liim a safe place in which to work, the latter cannot escape liability
on the ground that the injury was the result of the negligence of
a fellow-servant in constructing an unsafe appliance, for the em-
ployer owes a positive obligation to his employe which he cannot
avoid by deputing its performance to another employe: Chicago etc.
R. R. Co. V. Maroney, 170 111. 520, 62 Am. St. Rep. 396, 48 N. E. 953.
See, too, Edward Hines Lumber Co. v. Ligas, 172 111. 315, 64 Am. St.
Rep. 38, 50 N. E. 225; note to Mast v. Kern, 75 Am. St. Rep. 607;
and compare Kimmer v. Weber, 151 N. Y. 417, 56 Am. St. Rep. 630,
45 N. E. 860; Channon v. Sanford Co., 70 Conn. 573, 66 Am. St. Rep.
133, 40 Atl. 402, 41 L. R. A. 200; Daugherty v. IMilliken, 163 X. Y.
527, 79 Am. St. Rep. 608, 57 N. E. 757. In this last case it is held
that where, as in placing derricks for a temporary use, an employer
exercises reasonable care to furnish safe and proper materials and to
employ competent and skillful workmen, he has discharged his whole
duty, and is not responsible to an employe for the negligent use of the
materials.
The JAahilUii of an Employer to his employg for injuries resulting
from defective machinery and appliances is the subject of a mono-
grapliic note to Brazil Block Coal Co. v. Gibson, 98 Am. St. Rep. 2S9-
325, and the right of recovery by employes accepting hazardous duti(>s
is the subject of a monographic note to Houston etc. Ry. Co. v. Do
Walt, 97 Am. St. Rep. 884-900.
CASES
IN THE
COUET OF APPEALS
NEW YORK.
BEIGGS V. NEW YORK CENTRAL AND HUDSON
RIVER RAILROAD COMPANY.
[177 N. Y. 59, 69 N. E. 223.]
EVIDENCE. — In an Action for Personal Injuries the evidence
of experts as to future consequences which are expected to follow
the injury are competent, but to authorize such evidence the appre-
hended consequences must be such as in the ordinary course of nature
are reasonably certain to occur. Consequences which are contingent,
speculative, or merely possible are not proper to be considered iii
estimating damages, and may not be proved, (p. 721.)
EVIDENCE. — A Medical Expert Should not be Permitted in
an action for personal injuries to state numerous things which might
result as consequences of the injury, as that it might affect the
bladder or kidneys or other organs of the body and in the end become
permanent, (p. 721.)
Action for personal injuries. Jiulgincnt for the plaintiff
based upon the verdict of a jury. On appeal to the appelhite
division of the supremo court of the fourth judicial district the
judgment was afTirmed.
]\Iaurice C. Spratt. for the appellant.
Eugene ]\I. Bartlett, for the resjiondcnt.
«o O'BRIEX, J. On February 2, 1902, the plaintiff was
injured in a collision on the defendant's belt line in Buffalo.
It was a cold^ stormy niglit, and a great deal of snow had fallen
and drifted. Olijocts could not be <een very far through tlie
guow and it continued to storm after the plaintiff left the
Dec. 1903.] Briggs v. Xew York etc. R. E. Co. 719
train. The car in which the plaintiff was seated had the seats
arranged so that for a third of the length from either end of
the car they were continuous along each side and in the mid-
dle third of the car the seats were crosswise. The plaintiff
and her aunt sat in the seats crosswise of the car, and after
the train had stopped at one of the regular stopping places,
and had just got started forward, an engine following in the
rear collided with the train by running into the rear end of it.
As soon as the headlight was seen approaching, the plaintiff
and her aunt got up out of their seats and went forward to the
head end of their car. The plaintiff stood there without sup-
porting herself, until the collision occurred, which caused her
to sit down involuntarily upon one of the iron arm rest?, or
divisions, between the individual seats along the side of the
car. The collision appears to have been a slight one; nothing
was broken about the car except the glass in the front door,
and the train started up again and ran on to the next stop in
the usual way. The plaintiff and her aunt having reached
their destination, got out and walked for some ten minutes
through the storm and snow to tlie home of the aunt. It was
[Sunday evening and plaintiff stayed there that night and the
next day and night, and on Tuesday went home. The plain-
tiff "^ then went with her mother to a physician at his office.
The testimony tended to show that she went there every day
for a week and then every other day for two weeks and then
less frequently. It was claimed that the tip end of the spine
was injured, resulting in serious consequences. The physician
stated that when he first examined her he found a discoloration,
not very much discolored, about two inches above the tip of
the spine. He did not remember giving any local treatment,
but gave her nerve sedatives. The jury rendered a venlict
for the plaintiff of six thousand dollars, which has been unani-
mously affirmed.
The extent of the injury and the damages were sought to
be established by the plaintiff largely upon the testimony of
medical experts. These experts were conducted by the learned
counsel for the plaintiff, in his examination, through a very
wide field of speculative inquiry. Much of this testimony ap-
pears in the record without exception though it was constantly
objected to by defendant's counsel. Tlie testimony was not at
all confined. to tlie condition of the plaintiff at the time of the
trial, which took place about eight months after the accident,
but the experts were permitted to s])ecalate upou the conse-
720 American State Reports, Vol, 101. [New York,
quences of tlie alleged injury which might afTect tlie phiintiff
ill the future. It was suggested that the injury might affect
the bladder, the kidneys and other organs of the body and in
tlie end become permanent. The following is a specimen of
the testimony given by one of the plaintiifs experts who had
seen the plaintiff l)ut once and then long after the accident:
"The bladder is a very bad master and a very good servant.
If you humor it, or it gets into bad habits, it is almost impos-
sible to correct them. I make this statement more than ordi-
narily positive, because I have seen a great many of them. Be-
cause if this irritability in this child is either from her gen-
eral nervousness or if it is from some central trouble the re-
sult of the blow and the shock she has received, the outcome
of it is, in my judgment, permanent The effects on this
child, of this bladder, are of a general effect and local. The
general effect of frequent urinating is harassing, *^^ inasmuch
as it intorfercs with a person's going about. It is a ]Mti;ible
thing sometimes The coats become thickened, just as
much as a blacksmith's arm becomes larger, the bladder grows
so that by and by it don't hold as much water, so that even
if it was not sensitive, the person could not retain it and would
have to empty it, because it wouldn't retain it any longer.
After it has la-<tcd it subjects the person to a long train of
evils. A bladder which is enlarged and irritable is liable to
have infection and inflammation set in. and when you a<ld in-
flammation to irritability, you have a condition of all'airs that
i- most serious." The counsel for the defendant here interposed
and said: "I ol)j(^(t to this kind of testimony. It is of the
most general character ])ossible. I have olg'ccted to tlie ques-
tion, and I want to o])ject now to its being allowed to cou-
tinue." The plaintiff's counsel thereupou replied: '"If thci'o is
anv ])art of the evidence that is not responsive, the counsel can
move to strike it out, of course." The court thereuiK>n stated :
•^"T will let it staiul." and thereupon the defendant's counsel
excepted. Ill respionse to another question the witness, continu-
ing, stated: "If the condition of tlie l)ladder — when iliat, con-
diti' n of the bladder sets in which I have described, it is onl v
a step furtlier for it to asC(Mid to the kidneys. 'I'hat always dor',
not take phice. Imt as long as the lower urinary organs ai'e in
in that state, there i< no f|uestion about the jeopard v of the
ujifter urinarv orirans."
It is. undoubteillv. true tliat in an action to recover dam-
ages for personal injuries tlie evidence of experts as to the
Dec. 1903.J Beiggs v. Xew York etc. E. R. Co. 721
future consequences which are expected to follow the injury are
competent, but to authorize such evidence, however, the appre-
hended consequences must be such as, in the ordinary course
of nature, are reasonably certain to ensue. Consequences which
are contingent, speculative or merely possible are not proper to
be considered in estimating the damages and may not be proved :
Strohm v. Xew York etc. E. E. Co., 96 N". Y. 305; Tozer v.
New York etc. E. E. Co., 105 X. Y. 617, 11 K E. 369; Jewell
V. Xew York etc. E. E. Co., «3 97 App. Div. 500, 50 N. Y.
Supp. 848; Kleiner v. Third Ave. E. E. Co., 162 N. Y. 193,
56 N. E. 479; Smith v. New York etc. E. E. Co., 164 N. Y. 491,
58 N. E. 655. "We think this rule of evidence was violated in
this case, since the learned trial judge permitted to stand for
the consideration of the jury evidence which was speculative
and conjectural. Indeed, the medical experts in the case, upon
the examination of the plaintiff's counsel, were permitted to
state numerous things which might result as a consequence of
this injury. This is apparent from the extracts which we have
referred to and much more evidence of like character which is
to be found in the record; therefore, the learned trial judge,
in permitting the examination and in allowing the testimony to
go into the record to be considered by the jury, gave tlie sanc-
tion of the court to testimony wliich was higlily speculative and
conjectural and so far prejudicial to the defendant as to re-
quire a new trial. The objections made and exception taken
were sufficient to direct the attention of the court to the point.
The judgment should therefore be reversed and a new trial
granted, costs to abide the event.
Parker, C. J., ]\Iartin, Cullen and Werner, JJ., concur.
Gray, J., not sitting.
Ilaight, J., not voting.
Judcrment reversed, etc.
The Expert Testlmnru/ of a pliy.sioian in the case of personal injuries
must not invade the field of baseless conjecture: Sollcck v. .Tanesville
104 Wis. 570, 76 Am. St. Eep. 892, 80 X.' W. 944, 47 L. R.A. 691. It
may include, however, the probable effect and outcome of the in-
juries: Von PoUnitz v. State, 92 Ga. 16, 44 Am. St. Eep. 72, 18 S. E.
301; Bliss v. New York etc. R. R. Co., 160 Mass. 447, .39 Am'. St. Rop.
504, 36 N. E. 65; Block v. Milwaukee St. Rv. Co., 89 Wis 371 46 \m'
St. Rep. 849,. 61 N. W. 1101, 27 L. R. A. 365; Griswold v. New York
€tc. R. R. Co., 115 N. Y. 61, 12 Am. St. Rep. 775, 21 N. E. 726; Louis-
ville etc. Ry. Co. v. Wright, 115 Ind. 378, 7 Am. St. Rep. 432, 16 N E.
145, 17 N. E. 584.
Am. St. Rep., Vol. 101—46
722 Atvtfeican State Kepoets^ Vol. 101. [JS'ew York,
CRAXE V. BENNETT.
[177 N. Y. 106, 69 N. E. 274.]
NEWSPAPER LIBEL. — The Proprietor of a Newspaper Is
Liable for All that Appears in Its Columns, although the publicatioa
may have been made in his absence and without his knowledge, (p
723.)
DAMAGES, EXEMPLARY, for Act of a Servant or Employ6.^
When the proprietor of a newspaper surrenders to his general man-
ager and employes all his business affairs or the general management
of some particular business, and absents himself from the jurisdiction
where his paper is edited and published, leaving such manager in en-
tire charge thereof, the proprietor is responsible for the manner in
which his business is conducted, and if a libelous publication is
wanton, reckless, or heedless of the feelings of the* person libeled,
and, upon being apprised of the recklessness of the charges, there is
a continued refusal to make or publish any retraction, such proprietor
is liable for such punitive damages as the jury in its discretion may
award, (p. 724.)
JUDICIAL UTTERANCES, Restriction upon Effect of.— In ap-
plying cases which have been decided, what may have been said in
the opinion should be confined to, and limited by, the facts of tlie
case xmder consideration when the expressions relied upon were made,
and should not be extended to cases where the facts are essentially
different, (p. 726.)
LIBEL — Evidence of Malice. — The falsity of a libel is sufficient
evidence of malice, (p. 727.)
LIBEL — Malice — Exemplary Damages. — Though Defendant
Testifies and Produces Evidence Tending to Show that there was No
Actual Malice, yet if the plaintiff proves the publication of the libel
and that it is false, the judge should submit to the jury, as a ques-
tion of fact, whetlier malice existed in the publication, and if the jury
is of the opinion that it did exist, exemplary damages may be
awarded, (p. 729.)
Action for libel. Judgment for plaintiff, which, on appeal
to the appellate divipion of the su})rerae court in the first judi-
cial district was modified and ailirmed. The def<'ndant ap-
pealed.
Charles F. Brown, William Jay, Flamen B. Candler and
Robert W. Candler, for the apjK'llant.
Eugene Frayer, for the respondent,
^^^ MAirnX, J. This action was for libel. It was based
npon four articles published in the Xew York "Herald," a news-
paper owned by the defendant who resides in France but whose
paper is published in the city of Xew York. Its management
was confided solelv to persons in his employ who had practical
control of the entire business.
Jan. 1904.] Crane v. Bennett. 723
The plaintiff was a magistrate in the city of New York.
The matter complained of was published in four issues of the
defendant's newspaper, and related to alleged flagrant miscon-
duct imputed to the plaintiff in the discharge of his official
duties. The articles were published respectively on the twenty-
first, twenty-second, twenty-third and twenty-fourth days of
August, 1899. The first and each succeeding article related to
the same subject and they were all libelous per se. After the
publication of the first and of each succeeding one, the plain-
tiff wrote to the defendant's manager stating that each of the
articles was untrue and unjust, and asked that the defendant
retract or apologize therefor. Instead of sending or publishing
a retraction or apology, another article to the same general
effect and relating to the same subject was published, includ-
ing an editorial. After these repeated requests of the defend-
ant's manager and after writing to the defendant personally
upon the subject, stating that the publication of such articles
Avas creating a feeling of distrust and tending *^^ to disgrace
him in the eyes of the community, the plaintiff waited until
the 13th of the following November, when this action was
lirought to recover the damages sustained by reason of such
j)ubIications. That each of the articles published was proved
io be false and was libelous per se is not denied, nor is it dis-
puted that their publication was continued from day to day and
no retraction made by the defendant or those managing and
conducting the publication of his newspaper and the business
connected therewith. Obviously there was abundant evidence
to justify the jury in finding that the publication of the libels
complained of was recklessly and wantonly made and continued,
with utter disregard of the rights or feelings of the plaintiff.
This brief but general review of the situation is all the state-
ment as to the facts we deed necessary to dispose of the ques-
tions of law which are presented upon this appeal.
Tlie defendant contends that as the acts complained of were
performed in his absence bv his manager and employes, he is
not liable for pimitive or exemplarv damages, inasmuch as there
was no ])roof of personal ill-will or hatred upon his part suffi-
cient to form a basis for the finding of actual malice. That
the proprietor of a newspaper is responsible for all tluit appears
in its columns, although the publication mav have been made
in his absence and without his knowledge, is too well settled to
require discussion. His liability is not upon the ground of his
being the publisher^ but because he is responsible for the acts
724: American State Reports, Vol, 101. [New York,
of the actual publisher: TowBshend on Slander and Libel, sec.
123; Newell on Dcianiation, Slander and Libel, 377; Odgers
on Libel and Slander, 412; llulf v. Bennett, 4 Sand. 120;
xVndres v. Wells, 7 Jolms. 2G0, 5 Am. Dec. 267. In libel cases,
the falsity of the libel being proof of malice sufficient to uphold
exemplary damages (a question we shall presently discuss), the
riiiht to recover them in the discretion of the jury, rests in the
very act done in the publication of the false libel; and whoever
is chargeable with that act is chargeable with the legal conse-
quence, which is the riglit of tlic jury to redress tlie wrong by
imposing reasonable damages ^^^ beyond any injury actually
shown: J3issenting opinion of Davis, F. J., in Samuels v. Even-
ing Mail Assn., 1) LLun, 288, 294; affirmed, 75 N. Y. GOi.
Although a mere servant or agent employed to perform some
s| ccific act for a principal may not render the latter absolutely
liable for increased damages on account of his motives in per-
forming it, yet, when a principal surrenders to his general man-
ager and employes all his business affairs, or the general man-
agement of some particular business, absents himself from t!ie
jurisdiction where his paper is edited and publislied, leaving
such manager in entire cluirge thereof, he is res])onsible for
the manner in which his business is conducted. In other words,
a principal surrendering his entire business to another to be
conducted for liim should be held to the same responsibility he
Avould incur if he himself personally directed it, as to all mat-
ters coming within the line of the authority which he has con-
fiu-red upon such manager or emj)loyes. Tlicrefore, while, as
Avas lield by the trial court, the defendant might not have been
liable for any personal ill-will of liis employe's or servants against
the plaintilT, if tliere was a willful departure from such busi-
ness for their private or individual purposes, yet he is responsi-
ble for the manner in which the business so delegated was
])erformed by Ids manager, and if the publication complained
of was wanton, reckless or heedless of the rights or feelings of
the [ilaintitT, and uj)on being apprised of the groundlessness of
the charges there was a continued refusal to make or ])ublish
any retraction thereof, the defendant was fully responsiljle for
tlie acts of Ins general manager, and liable for sucli punitive
damatres as the jury, in its discretion, might award. In con-
sidering this question we have not regarded it necessary to re-
fer to the cases, relied upon by the learned counsel for tlie de-
fendant, relating to the question of punitive damages in ordi-
nary actions for negligence, as it is manifest that the rule gov-
Jan. 1904.] Ceane v. Bexxett. 725
erning the question in such actions is totally unlike that which
obtains in actions for tort or personal wrong.
Upon tlie trial the counsel for the defendant submitted to
^^^ the court a great number of requests to charge, some of
which were charged, others modified and cliarged as modified,
while otliers the court refused. To such rulings exceptions were
taken by the defendant. Although many of these exceptions
were discussed by counsel upon the argument and in their
briefs, still the exception to that portion of the charge by which
the court instructed the jury "that the falsity of the libel is
sufficient evidence of malice to uphold exemplary damages, but
the plaintiff's riglit to recover exemplary damages is in the dis-
cretion of the jury,'' fully presents the only other question we
deem it necessary to discuss or decide upon this appeal. In-
deed, we should not have regarded it necessary to discuss that
question at all but for the fact that there seems to be a mis-
apprehension among some of the members of the profession,
and an existing uncertainty on the part of courts as to the
effect of the decisions of this court relating to the existing rule
upon that subject. The situation seems to have chiefly arisen
from our decision in Krug v. Pitass, 162 IST. Y. 154, 76 Am.
St. Eep. 317, 56 N". E. 526, or from considering what was said
in the opinion in that case without limiting it to the facts in-
volved, rather than what was decided by the court. That was
an action against several defendants for the publication of an
article libelous per se. Each of the defendants testified he had
no malice or ill-will toward the plaintiff, when the latter, in
order to show express malice, was permitted to prove against
all the defendants that, several years before the publication, one
of them, who knew notliing about the article until after it had
been published, had made statements expressing ill-will and con-
tempt for the plaintiff, which were never heard by or com-
municated to the other defendants before the publication com-
plained of, and this court held tliat a judgment recovered
against all must be reversed, as the general malice proved
neither caused nor prompted tlie ])iil)lication, and that tlie ad-
mission of such evidence presumal)ly affected the verdict. Tliat
case was properly decided. In the opinioii. however, there arc
some expressions that may pcrliaps l)e regarded as not absolutely
accurate because not including certain exceptions *^- or added
principles which would be applicable to a case where the cir-
cumstances were essentially different. As was said bv the
learned writer of that opinion in Colonial Citv Traction Co.
726 American State Reports, Vol. 101. [New York,
V. Kingston City R. E. Co., 151= X. Y. 493, 495, 48 N. E.
900: "It was not our intention to decide any case but the one
before us, ... . and our opinion should be read in the light
of that purpose. If, as sometimes liappens, broader statements
were made, by way of argument or otherwise, than were essen-
tial to the decision of the questions presented, they are the
dicta of the writer of the opinion and not the decision of th.e
court. A judicial opinion, like evidence, is only binding so
far as it is relevant, and when it wanders from the point at
issue it no longer has force as an official utterance" : Stokes
V. Stokes, 155 X. Y. 581, 594, 50 N. E. 342 ; Roberson v. Roches-
ter Folding Box Co., 171 N. Y. 538, 551, 89 Am. St. Rep.
828. 64 X. E. 442, 59 L. R. A. 478. It cannot be reasonably ex-
pected that every word, phrase or sentence contained in a judicial
opinion will be so perfect and complete in comprehension and
limitation that it may not be improperly employed by wresting it
from its surroundings, disregarding its context and the change
of facts to which it is sought to be applied, as nothing short of an
infinite mind could possibly accomplish such a result. Therefore,
in applying cases which have been decided, what may have been
said in an opinion should be confined to and limited by the
facts of the case under consideration when the expressions re-
lied upon were made, and should not be extended to cases wlicre
the facts are essentially different. When this rule is followed,
much of the misapprehension and uncertainty tliat often arises
as to the ellect of a decision will be prax:'tically avoided. Con-
struing the Krug case in accordance with the foregoing rule
and giving it only the cil'ect suggested, it is manifest that it
has in no way affected the doctrine that the proof of the falsity
of a libel, of its character and of the circumstances under which
it was publislied. is sulliciciit to present a question for the jury
wliethor the malice was of such a character as to call for ex-
emplary or {)uniLive damages, and that that question rests with
the jury alone.
^'•' For a quarter of a century the dissenting opinion in
Samuels v. Evening Mail Assn., 9 Hun, 288, seems to have been
regarded as containing a correct statement of the principle a]i-
pli'.'abh; to the question of punitive damages in actions for lil'd.
In that case the general tenn rever-sed the action of the trial
court upon the gTound that the evidence did not justifv the
jury in awarding punitive damages and it ><'t aside the verdict
on that ground. Davis, P. J., however, dissented, and upon
a])peal to this court (75 X. Y. GU-i) the judgment of the gcu-
Jan. 1904.] Ckane v. Bexnett. 727
eral term was reversed and that of the trial court affirmed upon
the dissenting opinion. The principle established by the de-
cision of this court in that case as stated in the opinion of
Davis, P. J., is that "the falsity of the libel was sufficient evi-
dence of malice; .... the libel being false, the malice imput-
able from the act of publication is a part of the res gestae
from which the action arises The plaintiff in an action
of libel gives evidence of malice whenever he proves the falsity
of the libel. It l^ecoraes, then, a question for the jury whether
the malice is of such a character as to call for exemplary or
punitive damages; and that question is not to be taken away
from the jury because the defendant gives evidence which tends
to show that there was, in fact, no actual malice. When he gives
no such evidence it is the duty of the court to say to the jury
that, upon proof of the falsity of the libel, the plaintiff is en-
titled to exemplary damages in their discretion; Tillotson v.
Cheetham, 3 Johns. 56; and see opinion of Kent, C. J., in
same case; Taylor v. Church, 8 N. Y. 452, where the rule of
Tillotson V. Cheetham is approved; Hunt v. Bennett, 19 N". Y.
173. But where he gives evidence tending to prove the absence
of actual malice, then it is the duty of the judge to submit to
the jury the question, as one of fact^ whether such malice ex-
isted in the publication."
That case was cited with approval by this court in Bergmann
V. Jone5, 94 X. Y. 51, 62. It was there held that where a pub-
lication is libelous per se, and is proved to be **■* false, this is
suHicient evidence to require tlie submission of the question of
malice to the jury, and to warrant the allowance of exemplary
damages, although the defendant gives evidence tending to prove
no actual malice. Such evidence is to be considered by the
jury, and it is for them to determine, in view of all tlie evi-
dence, wliether punitive damages sliould ])e allowed or not.
Again in Warner v. Press P. Co., 132 X. Y. 181, 184, 30 K
E. 393, the Samuels case was followed and it was there said:
"The plaintiff gave evidence of malice when she proved the
falsity of tlie libclDUS publication, and in the absence of evidence
on the part of tlie defendant tending to sliow that it had neither
the desire nor the intention to wrong her, it would have been
the duty of tlie court to instruct tlio jury tliat the plaintiff
might be awarded exemplary damages in their discretion. But
testimony \yas adduced on the part of the defendant, tending
to prove the absence of actual malice on its part toward the
plaintiff, which taken in connection with the evidence of malice
728 Americvn State Reports, Vol. 101. [Xew York,
Avhich the law imputed when the falsity of tlie libel was es-
tablished, presented a question of fact whether malice existed
in the publication. If found to exist, then, in their discretion,
tlie jury could award exemplary damages," That case was also
cited with approval and followed in Marx v. Press P. Co., 134:
N. Y. 561, 563, 31 N. E. 918; Van Ingen v. Star Co., 1 App.
Div. 429, 37 X. Y. Supp. 114; allirmed on opinion below, 157
X. Y. 695, 51 X. E. 1094, and McFadden v. Morning Journal
Assn., 28 App. Div. 508, 517, 51 X. Y. Supp. 275. In Gray
V. Sampers, 35 App. Div. 270, 55 X. Y. Supp. 3, fue rule
stated was that in an action of libol, proof by the plaintiff
tending to establish the falsity of the alleged libelous article
is evidence of malice, and where it is given a question is pre-
sented for the jury whether the malice is of such a character
as to call for exemplary or punitive damages, and this ques-
tion is not taken from the jury because the defendant gives
evidence which tends to show that there was in fact no actual
malice. That was the rule which was also followed by the
learned appellate division in the case at bar (77 App. Div. 102,
79 X. Y. Supp. 6G).
In Smith v. Matthews, 152 X, Y. 152, 46 X. E. 164, this
court held that **^ punitive damages for libel are not limited
to cases of actual malice, but may be awardcKl for a libel reck-
lessly or carelessly published, as well as one induced by personal
ill-will. The Samuels case was again considered and cittnl with
ai)proval in Holmes v. Jones, 121 X. Y. 461, 467, 24 X. E. 701,
imd it was there said: "So far as tlie libel was not justified, it
was for the jury to determine the amount of the damages to
be awarded therefor. If they came to the conclusion from tlie
circumstances and the nature of the charge made, that the duu-
lication was malicious, in bad faith, or recklessly, carelessly or
wantonly made, they could go beyond compensation and award
{)unitive damages." In the same case, 147 X. Y. 59, 67, -19
Am. St. Pep. 616. 41 X. E. 409, this court said: "d'.ut the
aiiiount of damages in an action for lilxd is peculiarly within
the province of the jury. The jury may give nominal damages,
or damages to a greater or less amount, as they shall determine.
The jury may accord damages which are merely compcnsatorv,
cr damages beyond mere compensation, called punitive or vin-
dictive damages, hy way of exam])Ie or jnmishment, when iii
their judgment the defenihmt was incited hy actual malice or
acted wantonly or re.kle>?ly in nmking the defamatory charge.''
In King v. Poot, 4 Wend. 139, 21 Am. Dec, 102, which was an
Jan. 1904.] Crane v. Bennett. 729
action for libel, the court said: ''The jury may not only give
such damages as they think necessary to compensate the plain-
tiff for his actual injury, but they may also give damages by
way of punishment to the defendants": See, also, Cook v. El-
lis, 6 Hill, 46G, 41 Am. Dec. 757, and Tifft v. Culver, 3 Hill,
ISO. In Burr v. Burr, 7 Hill, 207, 218, in discussing this gen-
eral question, it was said: ''If a wanton and malicious outrage
is committed upon the civil rights of an individual, it would
oftentimes be monstrous injustice to confine the injured party,
when seeking for redress, to the actual ascertainable damages
he niay have sustained. Such a rule would be a license to every
species of private wrong; and in most cases of trespass to tlie
person, it would be impossible to apply it with any degree of
accuracy."'
This examination of the autliorities bearing upon the ques-
tion clearly discloses that the rule of law stated by the trial
^^^ court was proper and is justified by a long line of de-
cisions in this state. The general rule is that in an action for
libel, proof by the plaintiff tending to establish the falsity of
the alleged libelous publication is evidence of malice, and if
such evidence is introduced, a question for the jury is presented
whether the malice is of such a character as to call for puni-
tive damages, and that question is not to be withdrawn from
them because the defendant gives evidence which tends to
sliow that there was no actual malice. "We think tlie foregoing
rule is well established by the authorities of this state and else-
where, and tliat it must be regarded as the true rule, notwith-
standing any expression found in other cases where the question
was not necessarily involved, which may not be in consonance
with it. The doctrine of any such cases will not be followed,
but must be regarded as overruled so far as they may be in
conflict with this decision.
^Moreover, as we have already seen, the jury might well have
found, not only that tlie publications complained of wore
grossly false, were recklessly and wantonly made in bad faith,
liut also that after the defendant and his manager were fully
informed of their falsity and injustice, they were purposelv
at;d willfully continued without apology or retraction of an.v
kind. To paraphrase the laniiringe of Chief Judge Xelson in
Ilotcb.kiss V. Oliphant, 3 11111 510. 510. the defendant might
have inadvertently published tl:e oridiial article and have been
chariroable only with mistake or indifTorence to the truth, but
havino; been advised of liis error and havimj refused to correct
730 American State Reports^ Vol. 101. [New York,
it, the case rises to one of premeditated wrong, one of deter-
mined malignity toward the plaintiff, which should be dealt
with acc-ordingly, and there is no longer room for any indul-
gence toward the defendant's acts, hut he becomes a fit subject
for exemplary punishment, and the charities of the law give
way to such a prostitution of the public press.
Other questions were discussed at the bar, but as they were
properly disposed of by the court below and were of no general
or great importance, we regard it as unnecessary to continue
this opinion by any discussion of them, but will content
**'' ourselves by concurring in the disposition made of them
by the court below.
The judgment of the appellate division should be affirmed,
with costs.
Parker, C. J., Gray, O'Brien, Bartlett and Cullen, J J., con-
cur.
Haight, J., absent.
Judfrment affirmed.
WHEN A MASTER OR EMPLOYER IS LIABLE IN EXEMPLARY
DAMAGES FOR THE ACT OF HIS EMPLOYE OR SERVANT.
I. Scope of Note, 731.
n. General Principles of Law Applicable.
a. Nature of Exemplary Damages, 731.
b. Employes for Whose Acts Master is Liable, 733.
0. Distinction Between Corporations and Natural Persons as
Masters, 73J:.
d. Necessity for Acts to be Willful, Wanton, Malicious, Reck-
less or Grossly Negligent, 735.
e. Necessity for Act to be Authorized or Within Scope of Em-
ployment, 737.
f. When Act of Servant Must be Ratified, 739.
III. Torts Affecting Personal Rights.
a. Interference with Funeral Cortege, 740.
b. Offering of Insults or Indignities to Customers, 743.
c. False Imprisonment or Illegal Search.
1. In General, 714.
2. On Suspicion of Being a Shoplifter, 745.
d. Illegal Sale of Intoxicating Liquor to Drunkard Husband,
750.
IV. Torts Constituting Injuries to Person or Reputation.
a. Libelous Publications.
1. General Rule as to Publisher's Liability, 752.
2. Unchaste, Reckless or Grossly Careless Libels, 756.
3. Distinction as to Malice where Publisher is a Natural
Person and Where a Corporation, 758.
4. Ratification by Proprietor, 758.
Jan. 1904.] Craxe v. Bennett. 731
b. Personal Injuries.
1. From Assaults and Batteries.
A. In General, 760.
B. Necessity for Authorization or Ratification of Em-
ploye's Act, 762.
2. From Collisions on the 'highways, 763.
3. From Negligent Sales of Poisons or Deleterious Sub-
stances, 765.
V. Torts Affecting Rights to Property.
a. Trespass in General, 767.
b. Trespass Accompanied by Assault, 769.
I. Scope of Note.
This note will be confined to those cases in which exemplary dam-
ages were sought against masters or employers who were acting in
the capacity of natural persons. The subject as applied to the lia-
bility of corporations for exemplary damages for the acts of its em-
ploygs or servants was treated in the monographic note to the case
of Hoboken Printing etc. Co. v. Kahn, 59 Am. St. Eep. 589.
II. General Principles of Law Applicable.
a. Nature of Exemplary Damages. — The right to recover ex-
emplary damages under any circumstances has been frequently as-
sailed on the ground that it violates the constitutional provision pro-
hibiting the placing of a person twice in jeopardy for the same
offense; that though in its nature a punishment for the commission
of a tort public in character, it does not follow the course of crim-
inal procedure either in pleading or in mode of trial; that in the
trial of suits for its recovery the doctrine of preponderance of evi-
dence is substituted for that of reasonable doubt; that the defendant
may be compelled to testify against himself; that there is no pre-
cise limit to the amount of such damages which may be allowed by
the jury; that the pardoning power of the executive cannot be ex-
ercised; that, in short, in all its features it is a sin against judicial
principles; but notwithstanding the arguments which have been urged
against it, the rule allowing such damages is firmly fixed in most
of the states. Its rei^ulatiou has been, however, provided for by
statute in some of the states. It perhaps would accord more with
judicial principles if, in the allowance of exemplary damages, the
award were confined more strictly to such cases in which the tort
has caused mental anguish and humiliation to the injured person
through a contemplation of the violation of his natural civil rights as
a citizen and member of the community. It seems to us that there
are classes of cases, such as oppressive abuse of civil remedies and
wanton acts of libel in which the assessment of damages as com-
pensation could not be easily ascertained, and that in such cases it
would be proper to assess the damages in the same manner in which
acts of alleged cruelty are consivlered in divorce cases, viz., by con-
sidering whether the acts alleged constitute cruelty in the particular
732 American State Eeports, Vol. 101. [New York,
case when considered in connection with the status and social condi-
tion of the parties involved, for the courts draw such a distinction
when they hold that acts ■which might be deemed extreme cruelty
toward a woman of refinement and culture might not be so deemed
as against a woman fishmonger.
The definition given by Mr. Joyce in his work on Damages, section
28, is perhaps in accord with the general view held by the courts as
to what constitutes exemplary damages, he says: "Punitive, vindic-
live or exemplary damages are those in excess of the actual loss, not
intended as a compensation, but rather designed as a punishment for
the grossly negligent, wanton or malicious conduct, act or evil motive
of one person toward another as a result of which the latter has
sustained some injury, loss or damage." The nature of such dam-
ages was stated in the recent case of Boydan v. Haberstumpf, 12&
Mich. 140, 88 N. W. 3S6, wbi''h was a suit under the statute for an
illegal sale of liquor to plaintiff's husband, as follows: "The statute
expressly authorizes exemplary damages in this class of cases. But
'exemplary damages,' as the term has been employed in this state, has
generally been understood to mean an increased award of damages
in view of the supposed aggravation of the injury to the feelings by
the wanton or reckless act of the defendant. As was said in Ford
V. Cheever, 105 Mich. 685, 63 N. W. 976: 'It has never been the
policy of the court to permit juries to award captiously any sum
which may appear just to them, by way of punishment to the offender,
but rather to award a sum in addition to the actual proven damages,
as what, in tlieir judgment, constitutes a just measure of compensa-
tion for injury to feelings in view of the circumstances of each par-
ticular case.'
"We think it should not be permitted that a jury be given leave to
award damages as 'smart money,' or 'in the way of punish-
ment, to make an example for the public good.' "
Thus we see that the Michigan case, just quoted from, places such
damages in the light of compensation for injured feelings rather
than liy way of punishment. This view, which may be moro readily
reconciled with judicial princi])les than that based entirely on punish-
ment, was also stated in Ralston v. Tlie State Eights, Cral)l)e (U.
S.), 47. I'ed. ('as. No. 11,510, where the court said: "The damages
which are called exemplary arc nothinjr more than a higli and ex-
ag;.MTated estimate of the wrong or injury, which the courts and
juries take upon tliemselves to allow, bringing into cah-ulation, not
a new and distinct injury, but sometiiing beyond the mere pecuniary
loss or per^^(ln;ll suffering, stiH belonging, however, to thu original
wrong and to no other."
in Craven v. P.looiningdale, 171 X. Y. 442. 64 N. E. 169, which is
jicrhiips repr<'siiit;itive of the wci^-'lit (>i authnrity, the basis of ex-
emiilarv damages is distinctly based on tlie theory of punisluiient,
anii not on the (ii!li<-ul1y of csiiniMt iiig the damages in ceraiu kinds of
torts. In that case, the court approved the rule laid down by Judtce
Jan. 190 i.] Craxe v. Bexnett. 733
Andrews in Voltz v. Blackmar, 64 N. Y. 440, wherein he said: "In
punitive actions, as they are sometimes termed, such as libel, as-
sault and battery and false imprisonment, the conduct and motive of
the defendant is open to inquiry with a view to the assessment of
damages; and if the defendant, in committing the wrong complained
of, acted recklessly or willfully or maliciously with a design to op-
press or injure the plaintiff, the jury, in fixing the damages, may dis-
regard the rule of compensation and beyond that may, as a punish-
ment to the defendant and as a protection to society against the vio-
lation of personal righs and social order, award such additional dam-
ages as in their discretion they may deem proper. The same rule has
been held to apply in the case of willful injury to property and in
actions of tort founded upon negligence amounting to misconduct and
recklessness"; citing Tillotson v. Cheetham, 3 Johns. 56, 3 Am. Dec.
459; King v. Eoot, 4 Wend. 113, 21 Am. Dec. 102; Tifft v. Culver, .3-
Hill, 180; Cook v. Ellis, 6 Hill, 466, 41 Am. Dec. 757; Burr v. Burr, 7
Hill, 207; Taylor v. Church, 8 N. Y. 460; Hunt v. Bennett, 19 N. Y.
173; Millard v. Brown, 35 N. Y. 297. For a further discussion of the
right to recover exemplary damages, see the monographic note to
Spellman v. Eichmond etc. R. R. Co., 28 Am. St. Eep. 870.
b. Employes for Whose Acts Master is Liable. — In this note we
shall only treat of the liabilities of the master or employer arising'
from the relation of master and servant, and shall not discuss the
cases based strictly on the relation of principal and agent, although
the general principles applicable to the latter are very similar.
A servant has been defined as one who is employed to render per-
sonal services to his employer otherwise than in the pursuit of an
independent calling, and who in such service remains entirely under
the control and direction of the latter: Heygood v. State, 59 Ala. 51;
Gravatt v. State, 25 Ohio St. 1G8; while an agent is a jierson duly
authorized to act on behalf of another. The basic theory of the
liability of the master or employer for the acts of his servant or
employe is that the former has the control and direction of the
work in hand not only in its ultimate results but in the manner
of how it should be performed. This right to control the servant
or employe implies also the power to discharge him from the ser-
vice or employment for disobedience. Hence the basis of the lia-
bility of the master or employer is the maxim, "respondeat su-
perior." The decisions very often use the term "agent" as synony-
mous with "servant" in discussing the liability of the master for acts
of persons in his employ who are generally known or described as
servants.
The liability of the master arises from the relation itself, and as
far as the public is concerned does not depend upon the particular
stipulations which he may have with the servant. In Ward v. Young,
42 Ark. 552, a trusted convict was placed by the lessee of the pen-
itentiary, who, as such lessee, had charge of all the convicts, in charge
734 American State Reports, Vol. 101. [New York,
of his premises with orders to protect them from trespassers. He
assaulted and wounded a boy who was lawfully on the premises, and
exemplary damages were awarded against the lessee. It was ques-
tioned whether the relation of master and servant existed. The eourt
in holding that the relation existed, said: "Now, although the rela-
tion of master and servant springs out of a contract, yet as to tUnd
persons it can make no difference that Ward hired the services of
this convict from the state. The servant may be a minor and the
contract be with his parent. The master's liability, if any, arises
from the relation itself, and does not depend on the nature of the
stipulations in his contract. 'If one is injured by the servant of
another, and the injury is in any manner connected with the fact
of service, it would be immaterial to the injured party what the
contract of service was, how long it was to continue, what compen-
sation was to be paid for it, or what mutual covenants the parties
had for their own protection' "; citing Cooley on Torts, p. 532-
Wood 's Master and Servant, sees. 4, 7.
In Lombard v. Batchelder, 58 Vt. 558, 5 Atl. 511, it was sought to
apply the relation of master and servant in a suit against a husband
and wife sued jointly for an assault and battery committed by the
wife. The husband had used his best efforts to prevent the assault.
The court in sustaining a judgment for exemplary damages drew a
distinction between the master and servant cases, and said that the
husband was liable, "not as master, but as husband, and because
of the oneness of the twain in the eyes of the law." It seems to
us, however, that the authority of the wife to bind her husband by
her contracts is based upon the theory that it is by virtue of an-
authority derived from him and founded upon his consent, and not
by any inherent power from the mere fact of the marital relation:
See the authorities cited in the monographic note to Wanamaker v.
Weaver, 98 Am. St. Rep. 627, on the implied authority of wife to
act for husband and charge him for necessaries.
c. Distinction Between Corporations and Natural Persons as Mas-
ters.— Some of the older cases drew or tacitly proceeded upon the
theory that there was a real distinction between the liability of
a corporation and that of a natural person to exemplary damages
for the acts of their servants or employes, but the more modern
cases liold that a corporation is liable to the sajne extent to which
an individual master would be liable. The distinction was based
on the idea that a corporation must act through servants and agents,
whereas the natural person, being a conscious being, need not do so,
but if he did so. he could direct and control their acts and their man-
ner of performing such acts, the lialiility of the corporation in such
cases being based on the theory of principal and agent, while the
liability of the natural person was based on the relation of master
and servant. In Kutner v. Fargo, 20 Misc. Eep. (X. Y.) 207, 45 N.
Jan. 1904.] Crane v. Bennett. 735
Y. Supp. 753, the court said: "The decisions in this country upon
the question of the liability of a corporation in exemplary damages
for the willful or malicious acts of its agents are divided into three
classes. One holds the corporation never liable; another holds the
corporation liable if the wrongful act done by a servant acting within
the scope of his authorityj a third recognizes the liability if the
wrongful act was within the scope of the employment and was pre-
viously authorized or subsequently ratified by the corporation. The
New York decisions and those of the United States supreme court
seem to incline to the third class: Lake Shore etc. Ey. Co. v. Prentice,
147 U. S. 101, 13 Sup. Ct. Eep. 261, 37 L. ed. 97; Cleghorn v. New York
Cent. etc. E. E. Co., 56 N. Y. 47, 299, 15 Am. Eep. 375; Caldwell v.
New Jersey S. Co., 47 N. Y. 282; The Amiable Nancy, 3 Wheat. 546. A
note upon these cases will be found in 62 Am. Dec. 379." So, also,
in Central Ey. v. Brown, 113 Ga. 415, 84 Am. St. Eep. 250, 38 S. E.
989, the court stated that it was originally thought that a corporation
being created for lawful purposes could not do anything unlawful,
and hence that whenever its servants exceeded the charter authority
by doing an unlawful act that they necessarily committed the act
as individuals and not as representatives of the corporation, but that
now it ia almost universally held that a corporation is answerable
for the torts of its servants to the same extent and under the same
circumstances as an individual master would be. So, also, in Dins-
moor V. Wolber, 85 111. App. 157, the court, after citing various eases
in which the rule was laid down, said: "It is true that the above
cases all involved actions of railroad corporations for injuries alleged
to have been caused by their servants, but the rule adopted appears
to apply with equal force to cases involving the liability of natural
persons under like circumstances."
d. Necessity for Acts to be Willful, Wanton, Malicious, Reckless
or Grossly Negligent. — Mr. Justice Cooley, in Kreiter v. Nichols, 28
Mich. 498, stated the rule as to when a master could be mulcted in
exemplary damages for the acts of his servants, in the following
language: "We also think the court erred in refusing to instruct
the jury that exemplary damages should not be awarded, unless
the act of giving or selling intoxicating drinks to the husband of
the plaintiff was willful. The term 'exemplary damages,' or, as
it is sometimes phrased, 'punitory or vindictive damages,' is often
very loosely employed in the books, anj the controversy over the
doctrine which permits the allowance of such damages has been
very able and very persistent. But those who go farthest in sup-
port of such damages base the right to award them expressly on
the willful or wanton conduct of the defendant — the moral turpitude
or atrocity of the act, which renders it proper that damages by
way of punishment should be inflicted beyond what could be meas-
ured by compensation. Thus Mr. Sedgwick says: 'The general prin-
736 Americax State Eeports^ Vol. 101. [New York,
ciple that in case of willful wrong committed Tby the defendant, the
jury have a large discretion to award damages by way of punishment
has been asserted in a number of cases': Sedgwick on Damages, 454,
note. Mr. Justice Grier says: 'It is a well-establislied priuciple
of the common law that in actions of trespass and all actions on
the case for torts, a jury may inflict what are called exemplary, pun-
itory or vindictive damages upon a defendant, having in view the
enormity of his olTenso, rather than the measure of compensation
to the plaintiff.' And again: 'In actions of trespass whore the in-
jury has been wanton and malicious, or gross and outrageous, courts
permit juries to add to the measured compensation of the plaintiff,
which he would have been entitled to recover had the injury been in-
llicted without design or intention, something further by way of pun-
ishment or example, which has sometimes been called smart-money':
Day V. Woodworth, 13 How. (U. S.) 368, 14 L. ed. 181. And in the
leading case of Huekle v. Money, 2 Wils. 205, Lord Chief Justice Pratt
expressed the opinion that the jury had done right in awarding exem-
plary damages for a trespass committed by direction of the crown offi-
cers, and the legality of which they had endeavored to support anil
maintain in a tyrannical and severe manner. These extracts suffi-
ciently indicate the grounds on which such damages are allowed, and
show that they are not to be awarded unless the conduct of the defend-
ant is willful, wanton, reckless or otherwise deserving the punishment
beyond what the requirement of mere compensation would impose."
So, also, in Ilawes v. Knowlcs, 114 Mass. 519, 19 Am. St. Kep. S'S3, it
was said: "In an action of tort for a willful injury to the person,
the manner and manifest motive of the wrongful act may be given
in evidence as affecting the question of damages, for when the merely
physical injury is the same, it may be more aggravated in its effects
upon the mind, if it is done in wanton disregard of the rights and
feelings of the plaintiff, than if it is the result of mere carelessness";
citing Stowe v. Ileygood, 7 Alien, 118, and Smith v. liolcomh, 99
Mass. 552, And in Cosgriff v. ^Miller, 10 Wyo. 190, 93 Am. St. Eep.
1)77, G8 Pac. 200, a very recent case which involved wanton acts of
trespass on the }>art of defendant's servants, the court stated the
rule in the following language: "The general rule, where the doctr'ne
is recognized, is that where malice, fraud or gross negligence or
recklessness enters into the commission of a tort or where the act
is dune wantonly, exemplary damages are recoverable": See also
Kirtou V. North Chicago St. K. Co., 91 111. App. 554, to the same
effect.
In Trauerman v. Lippincott, 39 Mo. App. 488, the court defined
wanton acts as follows: "If one intentionally does a wrongful act
and knows at the time that it is wrongful, then he does it wantonly;
by the word I understand is meant causelessly, without restraint
and in reckless disregard of the rights of others. When one inten-
tionally commits a wrong, he does it from an evil spirit and bad
Jan. 190^.] Ckaxe v. Bennett. 737
motive. Good motive or spirit does not impel the commission of
willful wrongs."
In Hansford v. Payne, 11 Bush (Ky.), 380, which was a suit by the
personal representative of the deceased "for the wrongs, injuries
and damages done him" by substituting croton oil instead of lin-
seed oil in a prescription, the court held that "willful" and "gross"
were not synonymous terms when applied to negligence.
e. Necessity for Act to be Authorized or Within Scope of Em-
ployment.— In the early cases it was held that the^master was only
chargeable where the injury was caused by the servant's negligence
and unskillfulness in the discharge of his master's business, and
not where the servant's act was intentionally wrongful and willful,
but the latter cases place the liability upon the master if the act
was done while the servant was engaged in the master's business
and acting within the scope of his employment, regardless of the
actual intent of the servant in doing the act.
In Dinsmoor v. Wolber, 85 111. App. 156, the court remarked that
the authorities were not harmonious in regard to the question, but
that tbe courts of Illinois had substantially adopted the rule laid down
in "Wood on Master and Servant, section 323, wherein he said: "It
may be regarded as settled by the better class of cases that whenever
exemplary damages would be recoverable if the act had been done
by the master himself, they were equally recoverable when the
act was done by his servant": See, also, monographic note to Goodloe
v. Memphis etc. E. E. Co., 54 Am. St. Eep. 71, on acts of servants for
which master is not responsible.
Thus we see that the test of whether the master or employer can
be held liable for the willful, wanton or malicious acts of his servants
or employes, either in actual or in exemplary damages, is dependent
upon whether the act complained of was within the scope of the
servant's employment. The authority to do a particular act may
be implied if the act is within the scope of the employment or in
furtherance of the business of the master. As we have seen, the
responsibility of the master is based not only on his power to select
the servant or agent, but to direct the mode of executing the work
and controlling his acts in the course of the employment so as to
provent injury to others: Eobinson v. "Webb, 11 Bush (Ky.), 475.
The rule in that respect was stated in "Ward v. Young, 42 Ark. 553,
by setting forth the rule set out in Cooley on Torts, page 53S:
"The master who puts the servant in a place of trust or responsibil-
ity, or commits to him the management of his business or the care
of his property, is justly held responsible Avhen the servant, through
lack of judgment or discretion, or from infirmity of temper or under
the influence of passion aroused by the circumstance or the occasion,
goes beyond the strict lino of his duty or authority, and inflicts an
unjustifiable injury upon another." See Kreiter v. Nichols, 28 Mich.
492, to the same effect.
Am. St. Rep., Vol. 101-47
738 American State Eeports, Vol. 101. [New York,
It often, however, becomes quite a difficult question to determine
whether the act in controversy was within the scope of the servant 's
employment or not. In Mali v. Lord, 39 N. Y. 384, 100 Am. Dec. 448,
a leading case on the subject, the action arose over the defendant's
superintendent and clerk compelling the plaintiff to be searched on
suspicion of having stolen some goods from defendant's store, the
court said: "It cannot be presumed that a master, by intrusting
his servant with his property, and conferring power upon him to
transact his business, thereby authorizes him to do any act for its
protection that he could not lawfully do himself if present. The
master would not, if present, be justified in arresting, detaining and
searching a person upon suspicion, however strong, of having stolen
his goods, and secreted them upon his person. The authority of the
defendants to the superintendent could not, therefore, be implied
from his employment. The act was not done in the business of the
defendants, and they were not, as masters, responsible therefor. If
not responsible, if the superintendent acted in good faith in the be-
lief of the plaintiff's guilt, they clearly would not be, if he acted
from malice, in the absence of such belief." In Knowles v. BuHene,
71 Mo. App. 349, the court in answer to the argument, based on
Mali V. Lord, 39 N. Y. 381, 100 Am. Dec. 448, that if defendants could
not have lawfully arrested the plaintiff (she being innocent) that
their agents or servants had no authority to do so, admitted that
the case cited was authority for defendant's contention, but said:
' ' When it is said that no authority will be implied in the agent to
do an act the principal himself could not lawfully do, if present, it
must be understood as having relation rather to the character of the
act than as to what the principal might have lawfully done under
the particular circumstances of tlie case. To illustrate: The master
would have no authority, if present, to shoot and kill one detected
in stealing his goods, and so under the rule, correctly ap{)lied, no
such authority could be implied in the servant. But the master
may lawfully arrest and detain the thief and thereliy force him
to give up the stolen goods and authority therefor may be impliedly
given to the servant or agent standing in the place of the principal."
It seems to us that where the servant has the discretion to deter-
mine what sliould be done, that the master ought to be liable for his
niisjiidgment, although he may have done an act wliich the master
would not have been authorized to do; for instance, the act of a
condnrtor in ejecting an orderly jiasseiiger Avho has a valid ticket
would be unauthorized if done by the master, but it would not be
contended that the conductor was not placed there for the purjiose
of deeiding when such an act was necessary and proper, an<l that
the carrier would be bound by his acts in that respect. The rule
as to when an act of the servant, though done in the service, is vritliin
or without the course of that service is very clearly set forth in Mc-
Jan. 1904.] Ceane v. Bennett. 739
Clung V. Dearborne, 134 Pa. St. 406, 19 Am. St. Eep. 708, 19 Atl.
698, 8 L. E. A. 204, wherein it was said: "The general doctrine laid
down by the learned judge that every man is liable for his own tres-
pass only must not be taken too literally; for one must be held to
do that which he procures or directs another to do for him, as well
as that which he does in his own person. Qui facit per alium, facit
per se. Servants and employes are often without the means to re-
spond in damages for the injuries they may inflict on others by the
ignorant, negligent or wanton manner in which they conduct the busi-
ness of their employer. The loss must be borne in such cases by the
innocent sufferer, or by him whose employment of an ignorant, care-
less or wanton servant has been the occasion of the injury, and under
such circumstances it is just that the latter should bear the loss.
But the master is not liable for the independent trespass of his ser-
vant. If a coachman, while driving along the street with his mas-
ter 's carriage, sees one against whom he bears ill-will at the side
of the street and leaves the box to seek out and assault him, the mas-
ter would not be liable. Such an act would be the willful and inde-
pendent act of the coachman. It was done while in his master's
service but not in the course of that service. But if the coachman
sees his enemy sitting on the box of another carriage driving along
the same highway, and he so guides his own team as to bring the
carriages into collision, whereby injury is done, the master is liable.
The coachman was hired to drive his master's horse. He was doing
the work he was employed to do, and for the manner of his doing
it, the master is liable: Wood on Master and Servant, sec. 277. It
would be no defense to the master to prove that he had given his
coachman orders to be careful and not drive against others. It was
his duty not only to give such orders but to see that they were
obeyed. It will be seen, therefore, that it is the character of the
employment and not the private instructions given by the master
to his servant that must determine the measure of his liability in any
given case."
f. When Act of Servant Must be Ratified. — It seems to us that
if tlie act of the servant is within the scope of the employment that
no ratification of the act on the part of the master is necessary in
order to make the master responsible therefor. But when the act
is one which the master could have done, but was not within the
scope of the servant's employment, it would be necessary to show
that the master ratified it in order to hold the latter liable, but in
such case the liability would really be based on the principle of the
liability of a principal for the acts of his agent. An illustrative
ease may be found in Cobb v. Simon, 119 Wis. 606, 100 Am. St. Rep.
909, 97 X. W. 276, wherein the floor-walker of defendant, who con-
ducted a large department store, unlawfully searched plaintiff, after
having accused her of shoplifting, and also extorted money from her
for not sending her to the police station. In discussing the question
740 American State Reports^ Vol. 101. [New York,
whether the defendant ratified the acts of his floor-walker, the court
said: "Retention of a servant in his employment after notice to
the principal of a tort committed by the servant is evidence of
ratification of the act by the principal: Bass v. Chicago etc. R. Co., 42
Wis. 654, 24 Am. Rep. 437; Robinson v. Superior Rapid T. Co., 94 Wis.
345, 59 Am. St. Rep. 897, 68 N. W. 961, 34 L. R. A. 205. The informa-
tion to the principal should be full and complete, in order to justify
the conclusion of ratification on this ground: Patry v. Chicago etc.
R. Co., 77 Wis. ^18, 46 N. W. 56. It is not essential that the infor-
mation should come from the plaintiff, but however it coinos, it
should be more than a mere idle rumor :nid sliouM be so convincing
and persuasive as to convince the mind of an ordinarily prudent
employer that the facts exist whirdi call for tlio servant's discliarge.
Any other rule would necessitate the discharge of faithful em-
ployes whenever their conduct is assailed by irresponsible, unfounded
gossip, and such a rule would be plainly unjust both to employer
and employe. The question is generally one for the jury in view of
all information which came to the employer, and was such in the
present case, under proper instructions."
III. Torts Affecting Personal Rights.
a. Interference with Funeral Cortege. — Exemplary damages were
sought for the withdrawal of a hearse and acconipanying carriage
from a funeral cortege in the case of Gatzow v. Buening, 106 Wis. ],
SO Am. St. Rep. 17, SI N. W. 100.3, 49 li. R. A. 475. TIioult!'. the
action was based on a conspiracy, still the overt acts producing tlie
injuries were done by tlie driver of one of the defendants. The fai'fs
in the case were as follows: The plaintiff oni|doyed and paid one
Sclmbert, a liveryman, for tlie services of a hfarse and carriage !'or
use at the funeral of his child which was to be buried from hi^
residence. The hearse and carriage wore sent to plaintiff's residence
and were standing in front of plaintiff's residence aw;iiting the
termination nf 1lie funeral sers'iees. .Trst as tlie funeral ser\-ii'es were
over and the coffin containing the child's remains was about to bo
placed in the hearse, the drivers of t'le hearse and earriage ilrove
away, h^^ving the plaintiff and his large nnnilior of friends, who
were present, to resort to sueh m<^ans as they cotdd to continue the
funeral and without giving plaintiff any explanation as to the cause
nf their driving away. It ajipears that there was a liverynuMi's as-
S')ri:itinn, of which tlic defemlant Scluibert was a member, and of
whirli tlie defendant Buening, was the secretary; that according to
tlie livdaws of said association no TnemlM>r thereof was alhiweil to
(111 business with anv jiersnn who did not p;itroniz(; its Ttieiiibers ex-
clusivtdy, or t.i let a hearse to a jirivate jjarty for a fun(>ral where
the undertaher in charge nf suidi funeral was rt^imted to patrnnizo
nonunion members, or to any jier-on whose family, for the occasion,
patronized a uuni.ni'iu li\erv; that I'ur undert alier, being auth(jrized
Jan. 1904.] Crane v. Bennett. 741
to engage the hearse and carriage, engaged it in plaintiff's name
•without the defendant, Schubert, knowing that the undertaker was
in any way connected with the transaction, the engagement having
been made with one of Schubert's employes, but that Schubert, fear-
ing that the transactions might lead to a violation of the rules of
the association, directed the driver of the hearse not to remain at
the funeral if a nonunion man was in charge; that after the hearse
and carriage had left his barn to attend the funeral, the defendant
Buening was informed of the facts, and particularly as to who was
the undertaker in charge of the funeral, whereupon Buening, claiming
to act in pursuance of his duty as secretary of the association, com-
municated with Schubert 's barn, giving notice of the proposed viola-
tion of the association's rules, and requesting Schubert or some one
in his barn to cause the driver of the hearse to communicate with the
barn by telephone; that Buening then went to plaintiff's -residence
and stated to the driver of the hearse that his employer wanted to
talk with him over the telephone; that the driver then drove a short
distance from plaintiff's residence, but there was a conflict in the
evidence as to whether he telephoned as requested; that there was
some evidence that he told Buening there was no need to telephone,
that he had previously received orders to return in case the under-
taker mentioned was in charge of the funeral arrangements; there
was also evidence to the effect that when Buening visited plaintiff's
residence he ordered the driver of the hearse to return to the barn,
and said to the undertaker: "I am secretary of the union and au-
thorized to have the hearse go home. I am not going to leave before
the hearse goes away. I am going to break up this funeral. I am
not going to have this thing go on, and this hearse has got to go
home"; that Buening 's conduct at the affair was such as to attract
the attention of the persons present, and that when the drivers re-
turned to the barn, he said to the undertaker: "You see what I can
do?" There was also evidence of ratification on the part of Schu-
bert as to all that had been done. At the trial the defendants
requested the court to direct a special verdict pursuant to the Wis-
consin statute, which was refused. The appellate court, after stating
the arguments used on that proposition, said: "It follows that the
denial of the motion for a special verdict was wrong solely on the
ground of the reason assigned for it. It was useless to require the
jury, as did the court, to say whether defendants, or either of thcni,
participated in depriving plaintiff of the use of the hearse, because
Schubert said he instructed his driver to return to the barn if a non-
union man was in charge of the funeral, and that he gave such in-
structions in conformity to his obligations to the union. The evi-
dence was all one way that Buening was the moving spirit in caus-
ing the driver of the hearse to obey the instructions of his master,
and that his acts were in accord with his duties as secretary of the
union, and in conformity to a request made of him, either by Schu-
743 Amehican State Reports, Vol. 101. [New York,
bert himself or by some one in his behalf, whose acts Sc'^.iubert fully
ratified with knowledge of all the facts. Such ratification rendered
Schubert liable for actual and exemplary damages the same in all
respects as if he had originally authorized Buening to act in his be-
half: Eobinson v. Superior K. T. E. Co., 94 Wis, 345, 59 Am. St. Eep.
897, 68 N. W. 961, 34 L. E. A. 205. There was perfect concert of
action between all the parties concerned in the transaction to de-
prive plaintiff of the use of the hearse, and the acts of each and all
were in accord with the agreement between the members of the
union.
"The court needlessly required the jury to say whether facts ex-
isted warranting an assessment of exemplary damages. It was suili-
cient that they were instructed that the assessment of such damages
was discretionary with them.
"It w^ correctly said by the court, in substance, before the formal
charge was given, that the acts of tlie defendants were willful and
with intent to deprive plaintiff of tlie use of the hearse at a time
when they knew it would be impossible to supply another. As men
of common sense, defendants must have known that their conduct
would greatly shock the sen.sii>ilities of the plaintiff, would humiliate
and cause him great mental confusion, pain and suffering. No reason-
able conclusion could be arrived at from the evidence, other than that
the defendants intentionally carried out their unlawful design under
such circumstances as to demonstrate the power of the combination
to punish liverymen for doing business in an independent way, and
persons for dealing with such nonunion liverymen; that with such
ends in view they proceeded with reckless disregard of 'consequences
and with full knowledge of the inevitable result to plaintiff. All
the elements of fact warranting exemplary damages appear clearly
from the evidence as matters of law. There was the willful viola-
tion of plaintiff's rights, inflicted under circumstances of aggravation,
insult, or cruelty, with viudictivcness and malice": Citing ^fcWill-
iams v. Bragg, 3 Wis. 424, and Nichols v. Brabazon, 94 Wis. 549, 69
N. W. 342.
Though the acts giving rise to the award of exemplary damages
in this case were performed by the drivers of the hearse and car-
riage, who were in the immediate employ of the defendant, Schubert,
still it does not appear that they were done by the drivers on their
own initiative, and the court seems to base its decision more upon
the propositions that Schubert had specifically directed the ilrivers
to return in case a nonunion undertaker was in charge of the funeral
arrangements, or that, if he had not originally so instructed the
drivers, that Buening, the secretary of the union, acted as his agent
for that purpose and that he ratified Buening 's acts as such agent.
Hence we cannot say that this case would be an authority for acts
of that nature performed voluntarily by hearse and carriage drivers
under similar circumstances, and we refer to the case merely to raise
Jan. 1904.] Crane v. Bexnett. 743
the question whether acts of that sort by employes of a liveryman,
or undertaker, would be considered as within the scope of their em-
ployment in view of the prevalence of labor and similar associa-
tions, and the widespread knowledge of their rules and methods of
enforcing their rules.
b. Offering of Insults and Indignities to Customer. — The duty of
a merchant to his customer was discussed in the case of Cobb v. Simon,
119 Wis. 604, 97 N. W. 276, 100 Am. St. Rep. 909, which was a case
wherein defendant's floor-walker attempted to extort money from a
customer whom he had accused of shoplifting. In that case the cor-
rectness of an instruction that "a master is liable for a wrong done
by his servant, whether through negligence or mnlice of the latter,
in the course of an employment in which the servant is engaged to
perform a duty which the master owes to the person injured, was
questioned. The court in discussing the proposition admitted that it
would be applicable in the case of an assault upon a passenger by
the servant of a common carrier because of the carrier's duty to
the passenger in such a ease, but said: "It has not, however, been
applied to a merchant in his relations to customers. It is true that
customers in such a case are upon the premises by invitation, and
the merchant owes the positive duty to the customer of using care
to keep the premises in a reasonably safe condition for use by the
customer in the usual way; and this doubtless includes the duty of
using ordinary care to employ competent and law-abiding servants,
but we do not understand that he insures the customer personal
safety. We have been referred to no cases so holding." The court
then held the instruction not applicable to the case at bar. The tak-
ing off of a garment which a customer wag trying on accompanied by
insulting accusations was held to constitute an assault in Geraty v.
Stern, 30 Hun, 427. In that case, the plaintiff had gone into defend-
ant's department store to purchase an ulster for herself. W^hile she
had an ulster on her person preparatory to its purchase, the floor-
walker approached her, telling her that she did not want to purchase
the garment and using language indicating that she was a spy from
a rival house, and directed the saleswoman to take the garment off
from her, which was done. The court, in holding that the affair
constituted an assault and that the act was in furtherance of defend-
ant's business, said: "In this case there can be no claim that the
employes of the defendant were prompted by malicious motives or
selfish aims. Their action was in their line of duty as they under-
stood it. The duty to act was cast on them, then and there. Their
instructions were not to show styles or give prices to persons who
«ame from other stores to look at styles or obtain prices. Here an
•emergency arose when such a case was presented as the emploves be-
lieved and the duty of deciding was imposed on them. Thev mav
have decided unwisely, but their decision and action was clearly
within the line of their duty, and the defendants are responsible for
74-1 American State Eeports, Vol. 101. [New York,
the resulting consequences. It was for no selfish purpose that they
submitted the plaintiff to indignity but to serve the defendants
only, and they devolved the duty of carrying out their instructions
on their employes. They must be held responsible for the manner
in which it is done; no other rule would meet the requirements of
public policy or public convenience."
c. False Imprisonment or Illegal Search.
1. In General. — The rule as to under what circumstances a servant
may make his master liable in exemplary damages for the detention
or arrest of a person for some offense having relevancy to the mas-
ter's property or business was set forth in Markley v. Snow, 207 Pa.
St. 459, 56 Atl. 999. The court in that case stated the true rule to
be that set forth by Blackburn, J., in Allen v. London etc. Ry. Co.,
L. R. 6 Q. B. 65, wherein it was said: "There is a marked distinc-
tion between acts done for the purpose of protecting property by
preventing a felony or of recovering it back, and an act done for
the purpose of punishing the offender for that which has already been
done. There is no implied authority in a person having the custody
of property to take such steps as he thinks fit to punish a person
whom he supposes has done something with reference to the property
which he has not done. The act of punishing the offender is not any-
thing done with reference to the property, it is done merely for the
purpose of vindicating justice. "
It seems to us that the above is the proper rule in such cases.
The question arises most frequently in suits for false imprisonment
and illegal search on suspicion of being a shoplifter and the rule is
sometimes not strictly applied. Those classes of cases will be treated
in the next section. It seems to us, however, that in those cases
in which the rule above set forth has not been strictly applied may
be distinguished on the ground that the person making the arrest
or conducting the search was an agent for that very purpose, such
as the agents and employes of detective agencies and the detectives
or special police officers of large department stores. This theory is,
we think, illustrated by the case of Pinkerton v. Martin, 82 111. App.
5b9, wherein the appellee was arrested by the servants and agents
of appellant, who conducted a large detective agencv at Chicago^
under a charge of arson, and then placed in appellant's "sweat-box"
to extort from him his supposed knowledge as to who were the really
guilty jiartics. In appellee's suit for false imprisonment the court
said: "It is argued that there is no proof of express malice or want
of probable cause. We think the authorities cited by counsel ou
this question are not in point and have no bearing when applied to
the facts of this case. Here the arrest and detention were in them-
selves unlawful. Appellee was decoyed into Chicncjo upon false T)re-
tenscs, then illegally arrcstcl and unlawfully r-onfined for two weeks
being denied all communications with bis friends or the outside world
Jan. 1904,] Crane v. Bennett. 745
and with no attempt whatever to have a legal investigation as to his
guilt of any crime. Under these circumstances the law implies malice
and probable cause would furnish no justification. This proposition
is elementary, and it is scarcely necessary to cite authorities in its
support: Johnson v. Von Kettler, 84 111. 315." No question was
raised as to the acts of the agents or servants of appellant being
outside the scope of their employment. Another like case was that
of Clark v. Starin, 47 Hun, 345, wherein the defendant, who was the
owner of an island used as a summer resort, had an agreement with
one Pinkerton to furnish him a number of special police officers for
use on this island. His son, who was in charge of the resort, to-
gether with one of these special officers, arrested the plaintiff, who
was a ticket-taker at the resort, for the larceny of some tickets. The
court held that the defendant was liable for the false arrest. See,
also, Craven v. Bloomingdale, 171 N, Y. 439, 64 N, E. 169, discussed
in the last subdivision of this note.
2. On Suspicion of Being a Shoplifter. — It is difficult to lay down
any general rule as to the liability for exemplary damages for the acts
of servants in arresting or searching an innocent person suspected
of having stolen goods while shopping.
In an early case in New York, that of Mali v. Lord, 39 N. Y. 384,
100 Am. Dec. 448, the court in holding that the searching of a sus-
pected shoplifter was not within the scope of the master's employes,
after stating the general principles regarding the responsibility of
the master for the acts of his servants, said: "Applying these prin-
ciples to the present case, the inquiry is whether a merchant by em-
ploying a clerk to sell goods for him in his absence, or a superintend-
ent to take general charge and management of his business at a
particular store, thereby confers authority upon such clerk or super-
intendent to arrest, detain and search anyone suspected of having
stolen and secreted about his person any of the goods kept in sueh
store. If he does, he is responsible for such acts of the clerk or
superintendent. If not, then such acts are not within the scope of
the authority delegated to the superintendent, and the employer is
not responsible therefor, for the reason that, while in their perform-
ance, the servant is not engaged in the business of the master, any
more than in committing an assault upon or slandering a customer.
In examining this question it must be assumed that, by the employ-
ment, the master confers upon the servant the right to do all neces-
sary and proper acts for the protection and preservation of his prop-
erty, to protect it against thieves and marauders; and that the servant
owes the duty so to protect it to his employer. But this does not in-
clude the power in question. It cannot be presumed that a master,
by intrusting, his servant with his property, and conferring power
upon him to transact his business, thereby authorizes him to do any
act for its protection that he could not lawfully do himself if present.
746 American State Reports^ Vol. 101. [Xew York,
The master would not, if present, be justified in arresting, detaining
and searching a person upon suspicion, however strong, of having
stolen his goods and secreted them upon his person. The authority
of the defendants to the superintendent could not, therefore, be im-
plied from his employment. The act was not done in the business
of the defendants, and they were not, as masters, responsible there-
for. If not responsible if the superintendent acted in good faith in
the belief of the plaintiff's guilt, tliey clearly would not be if he
acted from malice, in the absence of such belief."
The Mali v. Ford case was followed in Mallach v. Eidley, 43 Hun,
336, under a very similar state of facts, the floor-walker in the latter
case having informed a policeman that a salesjrirl had seen plaintitr
steal a corset and conceal it on her person, and upon the policeman
bringing the plaintiff back to the store, directed that she be
searched. The trial court had charged that if the floor-walker had
done these acts on the supposition that he was in the exercise of
his duty of protecting his employer's goods, the emj)Ioyer would be
responsible for his acts; "that they had placed him there to do that
act and for any act of his in doing what he supposed w-as his duty
in detecting thefts or in suppressing thefts or in arresting thieves,
if he was mistaken in his judgment in that respect, the defendants
are responsible. They are not only responsible for that, but for any
excess of authority, or any excess in his action in regard to that."'
But the appellate department held that the trial judge had erred in
so charging on the ground that it made the liability of the defend-
ants depend upon tlio supposition of his servant as to the extent of
his authority, instead of upon the authority actually conferred or
implied.
It seems to us, however, that the doctrine enunciated by the trial
judge is sounder in princii)le. It also seems to us that in those cases
of suspected shojjlifting arising in large department stores or other
large stores where the floor-walkers are charged witli the duty of
watching customers to prevent tlie purloining of merchandise, or
where the proprietor has special policemen or detectives for that pur-
l)0sc, that the employer would be respimsible for the manner in which
they perform their duty. This view is sustained by the case of
Stevens v. O'Neill, 51 Aj.p. Div. r.Ot, 64 N. Y. Supp. 633. In that
case a ladv customer asked the salesgirl at defendant's store to show
her some watches. The girl showed her some which were very bri^^ht
in color, whereupon plaintiff asked her if she had not some nuire sub-
dued in character. The girl said "No," and counted the watches in
the trav and said that there was one missing. The plaintiff remarked,
saying, "Well, probably you have sold the watch," not thinking that
she was accused of stealing it. The salesgirl sent for the floor-walker
and he sent for the woman detective, who said, "You will have to
be searched." The detective then sent for a man and they, placing
plaintiff between them, took her through the store to the elevator,
Jan. 1904.] CexVne v. BeNxVett. 747
whence they went into a room where plaintiff was searched. The
defendant claimed that plaintiff asked to be searched for the purpose
of clearing herself from suspicion, and that no restraint whatever was
placed upon plaintiff by any of his employes. From the detailed
statement of the facts it will be seen that the defendant had insti-
tuted a system of espionage at his store and that the acts of all his
employes were done in pursuance of that system. The court said:
"It seems to us, when we consider the situation of the plaintiff, that
fihe was in the store of the defendant surrounded by persons who
were employed by the defendant to detect crime, substantially ac-
•cused of being a thief, and with the statement made to her, 'You will
have to be searched,' that this was the exercise of such a dominion
over her that the jury might very properly find that restraint was
exorcised, and that the subsequent proceedings were simply carrying
out the threat that they would search her. Under such circum-
stances the plaintiff certainly was not required to offer physical
resistance to this unjustifiable proceeding against her. The jury
having resolved that question in her favor, there seems to be no
ground whatever for this court to interfere. The authority of the
employes of the defendant is established beyond peradventure by the
testimony of the defendant himself. These were the agencies em-
ployed by him for the protection of his property; and these people,
in the proceedings taken by them, were acting clearly witliin the
scope of the authority which had been conferred upon them."
It was questioned whether the court should have submitted the
question of malice to the jury. The appellate court, in answer to
that question, said: "The law imputes malice to an unlawful act.
There is undoubtedly a difference between malice which the law
infers from the act itself and malice which is the product of a proved
mental operation. The court had the right to submit the question
of malice in this case. From the very grossness of the act itself,
malice may be inferred. Here, without the slightest evidence that
this plaintiff was in any way connected with the disappearance of
the watch in question, it is proclaimed to her that she must be
searched; in other words, she will have to submit to a search. And
surrounded as she was by the servants of the defendant, possessing
authority to act, she submits. It ig clear that from an act of this
kind the jury might infer legal malice."
And continuing, the court in holding that punitive damages could
be awarded, said: "It is further urged that there was no ground for
awarding punitive damages; in other words, that there was no ex-
press malice proved, and therefore no foundation for punitive dam-
ages. It will be seen, when we consider the nature of punitive dam-
ages, that the case falls within the rule permitting them to be
awarded. Punitive damages are given, not only as a punishment to
the defendant for a wrongful act, but also as a warning to others.
Although there was no evidence of any express malice against the
748 Ameeicak State Eepoets^ Vol. 101. [New York,
plaintiff individually, the act was done in pursuance of a system
■which had been adopted in that store; and if this system was such
as to place an innocent customer in the position in which the plain-
tiff's evidence shows that she was placed, the jury had the right
to say that the results of this system were of such a character as to
require rebuke by way of punitive damages in order that innocent
people should not be placed in the position which this plaintiff was
placed without any fault upon her part."
In Hershey v. O'Neill, 36 Fed. 168, the plaintiff, who was a stranger
in the city, went into defendant's department store and while there
took, without asking permission, an umbrella a distance of about
forty feet away to look at it, though the umbrella counter was in the
lightest part of the store. It was also claimed that she had reached
the sidewalk when she was politely accosted by a salesman and re-
quested to return to the store, which she did voluntarily. She was
arrested by a police officer at the request of the salesman. The court
held that a verdict in favor of defendant would not be disturbed.
In McDonald v. Franchere, 302 Iowa, 496, 71 N. W. 427, the plain-
tiff, while in a department store belonging to defendant, was asked
by a clerk, who suspected her of stealing a pepper-caster from a
counter, to go to another room, which plaintiff did. When in the
other room the clerk accused her of the theft, or asked if she took it,^
there being a conflict of evidence on this point. The court held that
the clerk acted within the scope of his duties so as to make his mas-
ters liable for the assault.
In Knowles v. Bullene, 71 Mo. App. 352, it was held that where
plaintiff was arrested by the floor-walker of a department store on
the report of a salesgirl that she saw plaintiff steal a piece of lace,
that the arrest would be held to have been made by the girl, and thus
come within a direction of the proprietor not to make arrests for
shoplifting unless the sales people actually see the theft.
But, if the malicious act of the servant is outside of the scope of
the employment, and not in furtherance of the master's business,
the master is not held liable in exemplary damages. Thus in the
very recent case of Cobb v. Simon, 119 Wis. 597, 100 Am. St. Rep.
909, 97 N. W. 276, the plaintiff was accused by the floor-walker of
defendant, who conducted a larg# department store, of liaving stolen
a bolt of lace. The accusation was made as she was leaving the store
with her daughter, the floor-walker, at the time, 8te])ping bank of
plaintiff and apparently taking a bolt of lace from under her arm,
saying, "Here it is." Plaintiff denied having taken the lace, but
was requested to return into the store, and was conducted into a
small room, which was then locked, and she was then searchci] for
stolen goods, the floor-walker tearing her dress open in front in
making the search. While making tbe search he told her that he
would send her to the police station unless she paid him fifty dol-
lars. Though she denied having stolen any goods, she gave him all
Jan. 1904.] Craxe v. Benxett. 749
the money which she had, amounting to fifteen dollars, and he let
her out. The court, after stating the evidence as to the duties of
the floor-walker, said: "Thus it appears that it was Saxe's [the
floor-walker] duty to watch customers and prevent them from doing
wrongful acts; also to take stolen merchandise away from customers
whom he discovered in the act of stealing. Now, if, aa a matter of
fact, Saxe honestly believed that plaintiff had stolen a bolt of lace
or other property in the store, and, acting on that belief, imprisoned
the plaintiff and searched her, it seems clear that as to these acts, at
least, the defendant would be liable, within the rule of Bergman
V. Hendrickson, 106 Wis. 434, 80 Am. St. Eep. 47, 82 N. W. 304, be-
cause the servant was attempting to carry out his duty of taking
merchandise from a customer whom he supposed was in the act of
stealing it, though using means not authorized by the master. On
the other hand, if the servant knew no merchandise had been stolen,
but falsely, or by a trick, made it appear that the plaintiff had the
lace under her arm and imprisoned and assaulted her in order to
extort money from her, the defendant would not be liable for any
of his acts, because Saxe had stepped aside from his employment to
commit a tort for his own purposes and ends."
The right to recover exemplary damages against the proprietor of
the store for an unlawful search of an innocent person by his em-
ployes, on a suspicion of having stolen shop goods has been denied
unless the act was authorized or ratified by the proprietor, although
compensatory damages were allowed. Thus in Staples v. Schmid, IS
B,. I. 230, 26 Atl. 193, the court said: "It is quite true that the mas-
ter would have no right to arrest and search an innocent person; but
it is equally true that he would have had the right to detain a thief
and to recapture his property from him. The case, therefore, was
one where the act, aside from any excessive force, might be lawful
or unlawful according to whether the supposed circumstances were
real or unreal. The servant was left in a situation where he was
obliged to determine the fact, and where his duty to his master
depended upon his decision. The decision was his, as tlie substitute
of the master, and the act was intended by him to be for his master's
benefit, and which his duty required if the facts were as supposed.
Hence, as to third persons, it was the master's act. The criteriou of
the master's liability can never be whether the act would have been
lawful for the master to have done in the circumstances as tliey
actually existed." The court, in discussing the excossiveness of tlie
amount of damages in the case, said: "The damages, however, whieli
were awarded are grossly excessive as compensation for tlie wrmi:,'
which the plaintiff suffered. They must have been estimated on the
supposition that exemplary or punitive damages were allowal)lc in a
case of this kind. The law upon this point was settled at an enriy
dav by this court in the case of Hagan v. Provi<lence etc. E. R. Co.,
3 R. I. 88, 62 Am. Dec. 377, where the late Chief Justice Brayton
750 Amekican State Eeports^ Vol. 101. [New York,
clearly shows that unless the principal participates in or approves the
wrong of his servant he can be held only for the actual damages
occasioned thereby. The opinion by Judge Brayton is quoted with
approval by the supreme court of the United States in the recent case
of Lake Shore etc. R. R. Co. v. Prentice, 147 U. S. 101, 114, 13 Sup.
Ct. Rep. 261, 37 L. ed. 97. For this reason we think a new trial
should be granted unless the plaintiff will consent to remit the dam-
ages in excess of the sum of one hundred dollars."
d. Illegal Sale of Intoxicating Liquor to Drunkard Husband. — The
recovery of exemplary damages by the wife for the sale of liquor to
a drunkard husband Is a matter which is regulated by statute, and
of course the decisions from one state are not of prevailing weight
in another state unless based upon a somewhat similar statute. In
Franklin v. Schermerhorn, 8 Hun (N. Y.), 115, it was held that in
suits under the statute allowing a wife to recover for the damage
to her support through the sale of liquor to her husband when al-
ready intoxicated, or where he is known to be an habitual drunkard,
that exemplary damages are recoverable where there are circum-
stances of abuse or aggravation on the part of the vendor.
In Smith v. Reynolds, 8 Hun, 128, which was a suit by the wife for
the death of her husband while in a state of intoxication caused
by sales of liquor by defendant's bartender, though it does not appear
from the case whether exem,p]ary damages were sought, the question
of the liability of the proprietor for the act of his bartender in sell-
ing the liquor during his absence was raised. The court in holding
the proprietor liable did not make itself clear as to whether the
liability was based on the theory of the relation of principal and
agent or the relation of master and servant. The court said: "No
principle is better settled in the law relating to the rights and lia-
bilities of principal and agent, than that the principal is liable to
third persons for the misfeasance, negligence and omissions of the
agent in the business of his agency: Story on Agency, sec. 308;
Paley's Agency, 294. In the note at the foot of the page cited, it is
said: 'The general rule is that the principal is responsible, civilly,
for the acts of his agent, but not criininally, unless done uudcr his
express autliority. '
"In note 1, at the foot of page 293, it is said that 'the rule that' the
master is liable for the wrongful acts of his servants is not confined
to domestic scrv.-ints, but has a more extended operation. All such
as act for, do the work of, serve another, are, in Cdiitcinplatiou
of law, his servants, and fall under the rule It makes no
difference whether these servants are paid by the job or by the year
or bv the dav. A third person has no concern with the terms of
the private agreements. The loss to him is the same, let the agree-
ment be either way; nor does it make any difference whether t!ie
person for whom the work is done be present or absent. If be ex-
Jan. 1904.] Crane v. Bennett. 751
pects to be absent, more care should be used in making the selection.
Nor is any distinction taken when the work is of such a nature that
the owner cannot be expected to do it himself and must necessarily
employ others to do it. In all these cases the person for whom the
work is done is liable, if a third person is injured.
"In note 1 to page 302 it is said: 'As a general rule, a master
is liable to answei in a civil suit for the tortious or wrongful
acts of his servant, if those acts are done in the course of his em-
ployment in the master 's service, .... and it makes no difference
that the master did not authorize or even know of the servant's act
or neglect, for even if he disapproved of or forbade it, he is equally
liable if the act be done in the course of the servant's employment.'
In view of these authorities and others which might be cited the re-
quest to charge was properly refused." The charge referred to by
the court was to the effect that if the liquor was delivered by de-
fendant's bartender and without defendant's knowledge and after
defendant had directed him not to sell or give away any liquor to
the deceased, the plaintiff could not recover.
In Brantigam v. While, 73 111. 561, which was a suit by the wife
under a similar Illinois statute, the sale was also made by the de-
fendant's bartender. The defendant sought an instruction to the
effect that exemplary damages should not be allowed if defendant had
instructed his employes not to sell liquor to plaintiff's husband, and
they through mistake or caprice did so. The court modified the re-
quest by making it a question for the jury. The court, in laying
down the rule in cases under such a statute, said: "The court held
in Freese v. Tripp, 70 111. 496, and in Keedy v. Howe, 72 111. 133, that
where, in good faith, the employes of the saloon-keeper were in-
structed not to sell to the person who is the subject of the action,
being intoxicated or in the habit of getting intoxicated, and the
servant willfully disobeys the instructions, the principal is not liable
in exemplary damages. The instruction, therefore, as modified, did
not go far enough, but left it discretionary with the jury to find or
not exemplary damages. This was error.
"It is apparent from the verdict, it going to the farthest extent
of the law, that the jury did not confine themselves to the actual
damages, but, influenced by the instruction that they could allow
for mental anguish and suffering, have gone the whole length.
"This court held in the cases cited, and iu Kellernian v. Arnold, 71
111. 6S'2, and Meidel v. Anthis, 71 111. 241, and in Fentz v. Meadows,
72 111. 540, that, under this statute exemplary damages could not
be allowed unless it should appear the party cliargcd bad sold after
warning and notice not to sell. That would present a fair case for
exemplary damages. The statute nowhere countenances the idea
that exemplary damages may be awarded at the mere caprice uf the
jury.
752 American State Reports, Vol. 101. [New York,
"This record may be searched in vain for proof that appellee was
injured in her person, in her property or in her means of support
by the act of appellant. We would infer, from her testimony, that al-
though her husband was a miller by occupation, he worked but sel-
dom and contributed very little to her support; that she, in fact, had
always supported him by her art and skill as a hairdresser. Her hus-
band was an encumbrance, it would seem, and not a useful member of
her household. There is no proof whatever that appellee has been
injured in either of the respects specified in the statute, and yet
she has received damages to the extent of the law. This finding is
contrary to the clear intent and meaning of the law as this court has
expounded it in the cases supra."
In Steele v. Thompson, 42 Mich. 595, 4 N. W. 53G, which arose un-
der the Michigan statute for the death of the husband caused by
an illegal sale of liquors to him, the court, on the question of the
recovery of exemplary damages, said: "First, as to the allowance
of more than actual damages. There is much room for contending
that the declaration itself restricts recovery to mere compensation
for the loss of means of support incurred by Mrs. Thompson, but it
is unnecessary to decide whether that it is so or not. The tenor of
the evidence is sufficient for the purpose of tlie point made. Ac-
cording to the case, her husband was an habitual drunkard and on the
afternoon in question carried a bottle in his pocket. During the
evening he was sitting in Steele's saloon, Steele himself being absent
and a bartender being in attendance. A customer came in and af-
ter some time invited Thompson and another person to drink, and
the bartender waited upon them and all three then went out. This
was about 10 o'clock in the evening. Thompson immediately drank
at two other places. He carried a lantern and was last seen during
that evening going toward the mill pond. The whole particulars
do not require statement. There was no evidence of any request or
suggestion to Steele to refuse liquor to Thompson, and tlie case is
silent as to whether Steele was aware that Thomjison had any wife
or family. We think the case is governed by Kreiter v. Nii luds, 28
Mich. 496, Gaussly v. Perkins, 30 Mich. 494, and Kehrig v. Peters,
41 Mich. 475, 2 N. W. 801; and that no ground was laid for exemplary
damages. There was no showing which could be possibly carried
further than to authorize a finding of a constructive liability, if
any at all. "
IV. Torts Constituting Injuries to Person or Reputation.
a. Libelous Publications.
1. General Rule as to Publisher's Liability. — In the prinf'ipnl ease
(Crane v. P,ennett) the general principles governing libel actions in
general and partifularly such cases in wliirji the ]il)elous j)iiV)lication
was perpetrated by the employes of t!ie newspaper proprietor during
Jan. 1904.] Crane v. Bennett. 753
his absence, were so thoroughly discussed that it would seem unneces-
sary to restate them.
The principal case, as we have seen, states the rule in New York
to be that evidence establishing the falsity of the alleged libelous
publication is evidence of malice, and that where such evidence is
presented it is a question for the jury whether the malice is of such
a character as to call for punitive damages regardless of whether
there be any evidence tending to show a want of actual malice. And
it al^o appears to be established that where a newspaper proprietor
surrenders to his manager or employes the general management of
his business affairs and absents himself from the jurisdiction where
his paper is published, leaving such manager in entire control and
charge thereof, the proprietor is responsible for the manner in which
his business is conducted in the same manner as he would be if he
had personally conducted his affairs.
This view was also set forth in Bruce v. Eced, 104 Pa. St. 415, 49
Am. Eep. 586. In that case a reporter sought to interview plaintiff,
who was an attorney and a member of the city council, upon a matter
of law, and he refused on the ground that he never gave opinions
on legal questions without being retained to do so. The reporter re-
ported the matter to the editor, who wrote an article intimating that
the plaintiff when expressing professional views on matters before
the city council was being paid by some one. The proprietor of the
newspaper knew nothing of the matter. The court, in discussing de-
fendant's liability for exemplary damages, said: "It is true it has
been held that express malice in an employe who had written a libel
cannot be invoked to swell the damages against the employer, if he
was ignorant of the publication and not negligent: Detroit Post Co. v.
McArthur, 16 Mich. 447; Scripps v. Reilly, 38 Mich. 10; Robertson v.
Wylde, 2 Moody & E. 101. It was, however, held in Goddard v. Grand
Trunk Ey. Co., 57 Me. 202, 2 Am. Eep. 39, that whenever exemplary
damages would be recoverable, if tlie act had been done by the mas-
ter himself, they are equally recoverable when the act is done by his
servant. So in Wood on Master and Servant, section 323, it is said:
*In many instances it has been held not only that the master is liable
for the wanton and malicious acts of his servant in the execution of
the authority given him by the master, but also, tliat in all such
cases the wantonness and malice may be shown to enhance the dam-
ages,' citing Hawes v. Knowlcs, 114 I\Iass. 51S, 19 Am. Eep. 3S3. This
conclusion flows logically from the ground on wliich the liability of
the master rests. If he so authorizes the act that he commits it
through the agency of another, he cannot claim exemption from any
of the legal consequences flowing from the act. If this view of the
law is applicable to any employer, we are unable to see why it shall
not apply to the proprietor of a newspaper, who employs others to
write for its columns. The proprietors do not always reside in the
«ity in which the paper is published. They may be in foreign couu-
Am. St. Rep., Vol. 101-43
754 American State Reports, Vol. 101. [New York,
tries much of the time. They direct the general course to be pur-
sued; but do not restrict the writers as to the specific means by which
the desired end shall be attained. If the proprietors are asked to
give the name of the author of any article, they refuse to do so, and
a person aggrieved, as a general rule, has no means of ascertaining
the name of the writer. If they are not held responsible for what
they cause to be written and published, every person connected there-
with may escape those punitive damages which the law frequently
imposes."
In Morgan v. Bennett, 44 App. Div. 325, 60 N. Y. Supp. 619, which
was one of several previous cases against the defendant in the prin-
cipal case, the court said: "This court held in McMahon v. Bennett,
31 App. Div. 16, 52 N. Y. Supp. 390, that the fact that the defendant
was absent and did not know of the publication, or that he had
made rules for the governance of his employes, unless the rules were
enforced, was entirely irrelevant. We then said: 'Upon the trial
it appeared in evidence that at the time of the publication the de-
fendant was in Europe, and that he had no personal knowledge of
the publication; that he had prepared and posted in the office of the
ne^v-spaper a rule which provided in substance that no article re-
flecting upon any person or corporation should be published until it
had been investigated and found to be true. But this did not re-
lieve him, as contended by his counsel, from punitive damages, pro-
vided the jury found that the article referred to was carelessly and
recklessly prepared and published. The proprietor of a newspajier is
responsible for whatever appears in the columns of his paper,' and
it is of no importance, so far as an action to recover damages is con-
cerned, that the same was published without his knowledge, lie
must see to it, if he desires to escape liability, that articles are not
published which unjustifiably injure the reputation or business of in-
nocent people.
" Wc fully indorse what was said, and it so completely disposes of
the question presented as to the third and fourth partial defenses
that it is unnecessary to add anything further. It should be noted
that there is no allegation that the rules referred to were enfijrced or
that any steps were taken prior to the publication to ascertain
whether the facts stated in the article were true or not. A ])erson
cannot shield himself from damages for a libelous publication in a
newspaper owned or conducted by him by absenting himself when
the publication is made or by establishing rules, no matter what they
are for the governance of his employes unless such rules be enforceil.
It is not difficult to see, if such a rule of law prevailed, that a pro-
prietor of a great newspaper could with impunity injure the reputa-
tion or destroy the business of any person in the community."
It was also held in O'Brien v. Bennett, 59 App. Div. 623, 69 N. Y.
Supp. 298, that such rules for the investigation of libelous articles
were no excuse for an award of punitive ilamages where the em-
Jan. 1904.] Crane v. Bennett. 755
ploy^s, as a matter of fact, published the article without making
proper inquiry to ascertain its truth or falsity: See, also, Andres v.
Wells, 7 Johns. (N. Y.) 261, 5 Am. Dec. 267; Holmes v. Jones, 147
N. Y. 59, 49 Am. St. Eep. 646, 41 N. E. 409.
So, also, in Bennett v. Salisbury, 78 Fed. 769, another case against
the same defendant in the cases just noted, these same rules were set
up in defense to a suit for the publication of a false and scandalous
story charging plaintiff with certain unchaste conduct. The un-
truthvfulness of the charges were admitted. The court, in discussing
the merits of this defense, said: "Experience has shown it to be a
fact that the rule of implicitly trusting a newspaper correspondent
is a dangerous one and that of all slanders those in regard to chastity
require prudent investigation, lest the character of innocent per-
sons should suffer a lifelong injury. The rule in question turned
over a suspicious story from an unknown author to the regular cor-
respondent. The rule is silent in regard to the character of the in-
vestigation; the character of the man who is to make it, the caution,
the prudence, the thoroughness with which it must be conducted, the
amount of proof which must be required, or the extent of the report
which must be made. The story which was received at the office
of the 'Herald,' if it was true, wrecked, and if it was not true, must
injure the happiness of two families, and was of such a character as
to require especial caution before publication. The jury probably
found that the rule was inadequate to meet the imperative demands
for prudence and caution which an investigation of the truth of such
a narrative required. If such a rule is to protect from punitive dam-
ages the absent or nonresident owners of newspapers who intrust the
management of their large properties and businesses to subordinate
agents, the principle of law which makes careless indifference to an
injury which may happen to others equivalent to malice can bo
easily avoided. It is probably true that the requirement of a more
stringent rule and more searching habits and practice of investiga-
tion and of more self-denial in respect to publication of libelous
matter would compel a marked diminution of that style of news, but
such a result would not be a cause for anxiety."
Tn Eviston v. Cramer, 57 Wis. 579, 15 N. W. 760, the reporter was
considered in the light of an agent. The court, in holding that the
newspaper proprietor was not liable in exeinplarv damages for his
malice, said: "And it must be deemed the settled law of this state
that the principal is not responsible in exemplary damages for the
actual malice of the agent unless ho has particij)atcd in or ratified
and confirmed the malicious act of the agent. Of course, if tlie
principal authorizes or directs the wrongful act then his own bad
intent will be imputable to it. It is said tlie answer shows tliat
Bleyer (the reporter) was directed by tlie defendants to inquire into
the matter of the charges and investigation of the plaintiff's con-
duct, write out the result of his examination, and publish it; therefore
756 American State Reports^ Vol. 101. [New York,
they ought to be helJ responsible to the full extent he would be.
We cannot adopt that view. We cannot presume from what is stated
in the answer that the defendants authorized or expected their re-
porter would write and publish a false and malicious libel upon tho
plaintiff. The reporter's employment ought not to be held as au-
thorizing him to do any such thing."
Tn Mallory v. Bennett, 15 Fed. 374, the proprietor was absent at
the time of publishing the libel. The court said: "The action of
libel, so far as it involves questions of exemplary damages and the
law of principal and agent, is controlled by the same rules as are
other actions of tort." And continuing it said, with reference to
the right to recover exemplary damages: "It is recognized and en-
forced against employers when there has been gross misconduct on the
part of their employes."
In Buckley v. Knapp, 48 Mo. 152, it was held that a newspaper pro-
prietor is liable for whatever appears in its columns, regardless of
whether he knew of the publication or authorized it. So in Dunn
v. Hall, 1 Ind. 355, the proprietor of a paper was held responsible for
a libel allowed to be inserted by his foreman in his absence, al-
though he had expressly forbade him from allowing any communica-
tion to be published from the author of the libel unless all per-
sonal references were cut out. And in Youmans v. Paine, 86 Ilun,
479, 35 N. Y. Supp. 50, the publication was made by the defendant 's
foreman witliout their knowledge. The court said: "The presumption
of law is that the publication, if false and libelous, w^as malicious:
Warner v. Press Pub. Co., 132 X. Y. 181, 30 IST. E. 393. That pre-
sumption was sought to be rebutted by the defendants upon trinl
of the cause by showing that they had no personal knowledge of
the publication; and, in fact, that whatever was done was done by
their agent. It must be assumed under the answer and from the
fact of justification therein that they became liable for the act of
their agent and stood upon tliat justification as a defense. The agent
was acting in the course of his employment: Fogg v. Boston etc
K. R. Co., 148 Mass. 515, 20 X. E. 109, 12 Am. St. Eep. 5S3, and note."
But in Smith v. Ashley, 11 Mot. (Mass.) 3G7, 45 Am. Dec. 216, it
was held that where the publisher believed an article published ])y
him to be a fictitious narrative, but it proves to be libelous, he is not
liable.
2. Unchaste, Reckless or Grossly Careless Libels. — From the dis-
cussion of the cases in the previous section wo have seen that tho
courts have held the publisher lialdo for the reckless editorial or
reportorial work of his employes during his personal absence, even
though he has posted rules for their guidance in performing their
respective duties. The courts, as we will see by the following cases,
lay particular stress upon the publication of unchaste stories or
grossly careless and reckless charges against a person's reputation,
and hold that the excuse that the hurry of large metropolitan journals
Jan. 1904.] Ceane v. Bennett. 757
in going to print is no justification for the publication of libels of
the character mentioned. That view was dwelt upon quite elaborately
in the case of Bennett v. Salisbury, 78 Fed. 769, from which we
quoted very liberally in the forepart of our discussion of the sub-
ject. So, also, in Smith v. Matthews, 152 N. Y. 158, 46 N. E. 164,
which was a suit for the publication of a libel attacking without
the shadow of justification the good name of an innocent wife and
mother, charging her with an elopement, the court said: "The learned
counsel for the defendants insist that punitive damages are only re-
coverable in case of actual malice when the wicked intent to in-
jure exists. The rule is otherwise, and it has been repeatedly held
in this state that a libel, recklessly or carelessly published, as well
as one induced by personal ill-will, will support an award of punitive
damages": Citing Warner v. Press Pub. Co., 132 N. Y. 181, 185, 30
N. E. 39o; Holmes v. Jones, 121 N. Y. 461, 24 N. E. 701; Holmes
V. Jones, 147 N. Y. 59, 67, 49 Am. St. Eep. 646, 41 N. E. 409; and con-
tinuing, the court, in answer to the argument that the publishers
were not actuated by any wicked intent to injure the plaintiff be-
cause they had received the item through the United Press Associa-
tion, held that they mast abide the consequences where it was their
custom, on receiving items of news, to publish it without ascertain-
ing their truth or falsity before publication.
In Seripps v. Eeilly, 38 Mich. 27, the court, after adverting to the
manner of collecting news for metropolitan daily newspapers, said:
"If a person were about to publish an article he knew would be
libelous, undue haste on his part to throw it before tiie public might
well be considered as an aggravation of the offense, while, if he were
acting in good faith, with pure motives and with an earnest desire to
give the public what he considered an important item of news, haste
in so doing would be praiseworthy; and should such an article after-
ward appear to be untrue and libelous, his motive in publishing it and
the time he had for investigation or deliberation might well be con-
sidered in mitigation of such damages as gross negligence might bo
shown to increase." And continuing the court said: "The law en-
deavors to protect private character from detraction and abuse, and
when private character is dragged before the public for such a pur-
pose, not as a subject in the discussion of whicli tlie public may
reasonably be supposed to have an interest, but to pander to a
depraved appetite for scandal, such publications soon give char-
acter to the paper. The publication of such articles, whether the
facts stated therein are true or not, are improper and unjustifia])le
and show recklessness and a want of due care on the part of the
publishers of the paper.
"Such articles are usually published from impure and sordid mo-
tives, and when permitted or countenanced by those in authority,
the employes' are thereby encouraged and sanctioned in continuing
such a reprehensible course. An employe engaged by the puljlishers
758 American State REroRTS, Vol. 101. [New York,
of a reputable journal would with diffidence publish scandalous mat-
ter therein, and if reprimanded for so doing would not be likely to
repeat the offense, while one employed in seeking for and publishing
news in one of less character, when once sanctioned by his employer
in the publication of such matter, would thereafter be much more
likely to seek for and publish all such with avidity. Under such dis-
similar circumstances it would be folly to expect in such case there-
after the same care and prudence in the selection of articles for pub-
lication. When, therefore, in a case like the present, it becomes im-
portant to consider what degree of care and prudence has been exer-
cised by the proprietor of a newspaper in the publication thereof, we
can see no good reason why the character which the paper has earned
may not be shown, irrespective of the truth or falsity of the articles,
by the introduction of the paper containing them to aid the jury
in determining the question.
"And while even where the very best of care is exercised, libelous
matter may sometimes creep into newspapers of character, and for
which the publishers will be liable to respond in damages, yet they
will be protected from such damages as a jury would be sure to in-
flict upon those who are reckless and indifferent as to the rights and
feelings of others, who hestitate not to publish scandalous matter,
the publication of which can accomplish no good or useful puV)lic
purpose. There doubtless may be a publication of many thinj;s
harmless in themselves which in no way interest the public and
of which no one would complain. We have not intended to say any-
thing against the publication of such articles."
3. Distinction as to Malice Where Publisher is a Natural Per-
son and Where a Corporation. — The rule as to the imputation of ac-
tual malice to the newspaper proprietor is slightly different wIkmi
the proprietor is a natural person than when a corjioration is the
proprietor. Thus in Lothrop v. Adams, 133 Mass. 480, 43 Am. Mop.
528, the libelous matter was wriiten up after an invostigatidii bv an
assistant local editor or reporter. The court treated the r(>latioii of
the newspaper pro])rietor ami the reporter as that of princijial ;!ii(i
agent. It said: "The logical difficulty of imputing the actual malice
or fraud of an agent to his j)rincipal is perhaps less when the prin-
cipal is a person than when it is a corporation; still thp foiniilation
of the imputation is not that it is inferred that the prin('ii)al actiially
participated in the malice or fraud, but the act having been done f:ir
his biMiefit by his agent acting witl'in the scope of his employnient in
his business, it is just that he should be hidd responsible for it in
damages. "
4. Ratification by Proprietor. — In the early case of Edsall v.
Brooks, 2 l\ob. (N. V.) 417, it v,-as Indd that aetual malice was not
proveil against tlu^ ]iro[irietors of a newspaper, who had not directed
and knew nothing of the liliel coni]ilained of, by showing that their
Jan. 1904.] Crane v. Bennett. 759
city editor refused to publish a full detraction. In Goodrich v. Stone,
11 Met. 492, in discussing whether the proprietor of a newspaper rati-
fied a libelous article claimed to have been inserted clandestinely, the
court said: "If he could avail himself of a defense founded on the
fact that the publication was made contrary to his intent and against
his orders or through some fraudulent act of another, he should avail
himself of the earliest practicable opportunity to disavow the pub-
lication and to disown it and repudiate it in plain and direct terms,
such sSLS will, as far as possible, correct the error and repair the wrong
unintentionally inflicted through the columns of a newspaper of which
he is the proprietor. If, on the contrary, he subsequently publishes
an article in reference to such previous article, giving it his sanction,
or omitting to repudiate it or retract the charge contained in it,
such subsequent article may properly be introduced as indicative of
the true position of the proprietor of the paper, as to the previous
article."
And in Haines v. Schultz, 50 N. J. L. 481, 14 Atl. 488, the libelous
article was also inserted in the newspaper without the knowledge of
the proprietor. It was sought to charge the proprietor with exem-
plary damages therefor, but the court in refusing to allow such dam-
ages, said: "And had there been any proof of such approval, any
testimony of general instructions, of which this libel was the out-
growth, any evidence as to ratification, the jury might have been
warranted in inferring a wrongful motive to fit the wrongful act.
But absence of proof of his disapproval, absence of proof that de-
fendant had reproached his employe, or that he had discharged him —
in fine, absence of all proof bearing on the essential question, to wit,
defendant's motive, cannot be permitted to take the place of evidence
without leading to a most dangerous extension of the doctrine, re-
spondeat superior.
"A plaintiff whose claim to punitive damages rests upon a wrongful
motive of defendant, not inherent in the offense which fixes tis lia-
bility, must present some proof from which such wrongful motive
may be legally inferred."
And later in the same case the court also said: "Proprietors of
newspapers are unquestionably liable in law for whatever appears in
their columns. Libelous publication is a wrongful act, and when to
a, wrongful act we add testimony from which a wrongful motive can
be inferred, punitive damages may be inflicted. But the maxim
■'Respondeat superior' is a rule of limitation as well as of liability.
If a principal must, on the one hand, answer for liis agent's wrong-
<loing, on the other hand, his liabilitj' is circumscribed by the scope of
his agent's employment unless there be proof of a ratification by him
of his agent's misconduct. Xo rule of law is better established tlian
this. The same principle applies, and with equal force, to the doc-
trine of exemplary damages."
760 American State Eeports^ Vol. 101. [Xew York,
In Mallory v. Bennett, 15 Fed. 375, it was declared that: "'vYhen
a newspaper, after publishing an atrocious calumny, refuses to ri'truct
it upon discovering its true character, and refuses to disclose the
name of the originator, fair-minded men are disposed to think that
the conductors of the paper are willing deliberately and completely
to assume the paternity of the slander, and identify themselves with
the author. If the ethics or canons of journalism do not permit the
names of anonymous correspondents to be disclosed or retractions to
be made, such a code will hardly be respected in the jury-box or find
advocates upon the bench."
b. Personal Injuries.
1. From Assaults and Batteries.
A. In General. — In suits for damages for assaults and batteries,
personal injuries are generally shown to have resulted; hence it can-
not always be ascertained whether exemplary damnges were claimed or
whether the jury in the particular case awarded more than mere com-
pensatory damages. It does not, however, seem to be questioned but
that the master may be liable in punitive damages for an assauli
committed by his servant, wliere the assault is committed under such
circumstances as will warrant the assessment of such damages: Ara-
smith V. Temple, 11 111. App. 39. The test for ascertaining when ex-
emplary damages are properly awarded in cases of assaults was set
forth in Boyer v. Coxen, 92 Md. 370, 48 Atl. 161. In that case, which
was a case involving the recovery of punitive damages for an assault,
the court said: "We said in Smith v. Philadelphia etc. E. Co., S7 Md.
51, 38 Atl. 1072, that 'the force with which the act complained of
was done is not the test by which the inquiry as to whether punitive
damages are recoverable is to be determined'; and we had so stated
in effect in the case of Philadelphia etc. K. Co. v. lloeflich, O'li M<1.
307, 50 Am. Ecp. 223; but in those cases we also quoted with approval
from Philadelphia etc. R. R. Co. v. Quigley, 21 How, (U. S.) 213, 26 L.
ed. 73, that, 'Whenever the injury complained of has been inflicted
maliciously or wantonly an<l with circumstances of contumely or in-
dignity, the jury are not limited to the ascertainment of a siiiij)le
compensation for the wrong committed against the aggrieved person.
But the malice spoken of in this rule is not merely the doing of an
unlawful or injurious act. The word implies that the act complained
of was conceived in the spirit of mischief or of criminal indifference
to civil (>))]igations. ' If the servants of tiie defendants, acting on
the belief that it was their duty to remove Coxen or his team in
iirder to clear tlie way for other customers, had uscmI more force in
doing so than was necessary, it would not necessarily have made
them liable for punitive damages, but when one of them use<l an
instrument, such as has been 'ii'scribed [a monkey-wrencli], in the
E;anner and ^vith the results spoken of by the plaintiff and his wit-
nesses, such conduct was evidence of an evil motive in the act done.
Jan. 1904.] Crane v. Bennett. 761
which the jury was properly permitted to consider in passing on the
question of damages. 'The tort is aggravated by the evil motive
and on this rests the rule of exemplary damages': Railroad Co. v.
Arms, 91 U. S. 493. In one of the latest cases on the subject in this
court, we held that if the jury found that the plaintiflE 'was treated
with reckless violence and indignity' that they could award punitive
damages: Thillman v. Neal, 88 Md. 525, 42 Atl. 242. Even if a de-
fendant has a right to do in a proper manner the act complained of,
if it be done 'wantonly and in a high-handed and outrageous man-
ner,' he is liable to exemplary damages: Philadelphia etc. R. Co. v.
Larkin, 47 Md. 164, 28 Am. Eep. 442. Can it be doubted that it was
'wanton, high-handed and outrageous' in McKewen to beat the
plaintiff over the head with a monkey-wrench eighteen inches long,
break his nose and otherwise seriously injure him, simply because
he refused to move his team until the commission merchant was com-
municated with, even conceding that he had no right to make such
a demand? Yet, that is what the plaintiff's testimony showed, and
when the prayer authorized the jury, in its discretion, to award ex-
emplary damages, if it found the act of McKewen to be 'wanton and
attended with reckless violence,' it was clearly free from the objec-
tion that there was no legally sufficient evidence to justify its sub-
mission. The judgment must be affirmed."
In AVard v. Young, 42 Ark. 542, the lessee of a penitentiary, who
as such had charge of all the convicts, was held liable in exemplary
damages for an assault committed by a trusted convict, whom he
had placed in charge of his premises to protect them from trespassers,
on a boy who was lawfully upon the premises to shoot birds. The
question whether the relation of master and servant existed was
raised, but the court held the relation did exist.
In Wade v, Thayer, 40 Cal. 578, the plaintiff, who had gone, while
intoxicated, in a hotel bedroom without having obtained permission,
sued for an assault committed on him by the porter and hotel clerk
and participated in by the proprietor himself. In reviewing the
charge of the trial court the appellate court said: "They embody
but two general propositions; i. e., first, that the defendants were
not liable for punitive or exemplary damages, however malicious and
provoked the assault may have been, but only for the actual dam-
ages which the plaintiff suffered; second, that if either one of the de-
fendants were not present at, and did not advise or aid in, the assault
committed by the others, he is not responsible in damages. The first
projiosition is not sound law. It is too well established to need the
citation of authorities that exemplary damages may be given for a
wanton, malicious and unprovoked assault upon the person, and it
is equally plain that if the assault was committed by Land and
Carmody whilst in the performance of their duties as the servants
and employes of Thayer, the latter would be responsible for the
actual damages which the ph'.iiitiff suffered, even though he was not
762 American State Reports^ Vol. 101. [New York,
present and in no manner consented to or aided in the assault. He
would be responsible as principal for all the actual damages caused
by his agents and servants in the performance of their official duties;
but would not be liable for their wanton and malicious acts done
without his consent or approval. This question was fully discussed
and the authorities cited in Turner v. North Beach etc. E. E. Co., 34
Cal. 599, and need not be further noticed." See, also, the last sub-
division of this note.
B. Necessity for Authorization or Ratification of Employe's Act.—
It seems that neither express authority nor ratification of the assault
of the employe is necessary in order to hold the employer responsible
in exemplary damages for such an assault, though the assault must
have been within the scope of the employment. Thus, in Callahan v.
Hyland, 59 111. App. 347, the person collecting money on an install-
ment sale of books was called an agent and treated as such by the
court in discussing the case. In that case the principal was held
not liable for an assault by the collector upon a woman who
was not the one from whom he was to collect the installment, but
who was called in by the alleged debtor to prove that she did not in
fact owe the bill, the court holding that he was not authorized to com-
mit an assault on such a person.
In Arasmith v. Temple, 11 111. App. 39, both the master and the
servant committing the assault on plaintiff were sued. The plaintiff
had been a "galloper" for defendant's racing stable and was as-
sp.ultod by another employe of the racing stable called a "trainer."
The plaintiff sought to show a ratification of the assault by a re-
fusal of the master to settle the account for his wages and making
some unjust deductions from the amount due. The court said: "The
admission of the evidence touching the settlement with appellee, the
refusal to deliver his overcoat, and the remark about his manner of
walking — occurring at different times, but all a fortniglit or more
after his injury — is defended on the ground that it showed in ap-
pellant an unfriendly disposition — in sympathy with the injurious
act — and so tended to prove a ratification or adoption of it. No au-
thority is cited and the reason offered appears unsound. Ealifieatinii
consists in or is evidenced by some overt act or declaration having
reference to the act ratified, and susceptible of positive proof. A
disposition which might find satisfaction in it, but manifested only
by acts or declarations not particularly referring to it, cannot legally
or logically tend to prove the actual commission or use of another
havinjT such refereuce. In other words, ill-will on the part of ap-
pellant toward appellee, however manifested except by some act or
expression having direct reference to the particular trespass com-
mitted upon him by Jones, does not tend to prove a ratification or
adoption by him of that trespass."
In Bover v. (.'oxen, !t2 Md. '^66, 48 Atl. 161, the assault was com-
mitted by an employe of a p:icking-house. The court, in stating
Jan. 1904.] Craxe v. Bexxett. 763
the rule that express authority or ratification is not necessary, used
the terms "agents" and "servants" interchangeably. It expressed
the rule in the following language: "Some courts of high authority
have adopted the rule that a principal is only liable in punitive
damages for the act of his agent when the former has either given
■express authority to the agent or subsequently ratified his act, or
was guilty of some misconduct himself in connection with it. "When
it is remembered that such damages are allowed by way of punish-
ment to the offender and as a warning to others, the doctrine sanc-
tioned by those courts cannot be said to be wholly without foundation
to base it upon, for it is at least unusual to punish one person for
the act of another, unless the former did either authorize or ratify
it or take some part himself in what is complained of. But there
are a number of instances in which the principal may be even crim-
inally liable for the acts of his agent, for some of which see 1 En-
cyclopedia of Law, second edition, 1161, note 2, and in this state we
have not followed the doctrine held by the courts above referred to in
civil suits. Although the rule adopted here may in some cases result
in hardship to the principal, yet, if carefully applied, there is less
danger of injustice in enforcing it, in proper cases, than in denying
it in all cases, unless the principal has actually participated in the
wrong done by his agent or servant or authorized or ratified it. Any
liability of the m^aster for a tort of his servant is dependent upon
the fact that the servant was actually at the time in the course of
his master's service, and for his benefit, within the scope of his em-
ployment. The master selects him for that service and knows, or
ought to know, what sort of a person he is investing with authority
to act for him. The servant is acting for his master when the wrong
is done — it is in contemplation of law the act of the master. In a
great many cases, a judgment against the servant would be of no
value to the injured one and no punishment to the wrongdoer, as it
■could not be collected. Every character of business of any consider-
able proportion is for the most part conducted through agents and
servants, and if the principal or master cannot be held responsible
in punitive damages, it would in many, perhaps in most, actions of
torts, be equivalent to abolishing that character of damages, if he is
to be relieved by reason of the fact that the act complained of was
■done by the servant, and not by him individually. This court has
therefore foliowed the rule that the master is not exempted from the
liability for such damages merely because the act complained of was
done by a servant and not by the master himself, and in many oases
exemplary damages have been allowed against the master for acts
done by the servant, without express authority from the former or
ratification by him having been shown."
2. From Collisions on the Highways. — The cases in which ex-
emplary damages are sought for collisions on the highway generally
result from the gross negligence of the driver of one or both of tlie
76-i American State Eeports^ Vol. 101. [New York,
vehicles colliding. The rule applicable in such cases has been well
stated in the decisions involving questions of this sort. Thus in
Hawkins v. Eiley, 17 B. Mon. 101, which was a collision between a
stagecoach and a buggy on the road in advance of it, the court
Paid: "If the collision was brought about by the wantonness, reckless-
ness or gross negligence of the driver, then it was permissible in the
jury, in view of all the facts, to award what the law terms ex-
emplary damages as well against the proprietors as the driver, but
for a mere casualty or collision without such wantonness, reckless-
ness or gross negligence exemplary damages should not be awarded."'
So, also, in Sawyer v. Sauer, 10 Kan. 466, the court said: "It hardly
admits of doubt that the employment by a stagecoach proprietor of
a known drunkard and intrusting to his care the lives and limbs of
passengers is the grossest of negligence. The traveling community
have a right to expect that the drivers of coaches, like the engineers
of locomotives, are men not only competent, but of sobriety; and
whenever a known drunkard is placed in such positions of trust, the
party so placing him should pay smartly for such reckless indiffer-
ence to human life. ' '
In Wall V. Cameron, 6 Colo. 275, the court said: "Exemplary dam-
ages can never be recovered upon anything less than gross negligence,
and by gross negligence is meant 'such entire want of care as to raise
a presumption that the person in fault is conscious of the probable
consequences of carelessness, and is indifferent or worse, to the
danger of injury to person or property of others': Shearman and Eed-
field on Negligence, sec. 600. To justify these damages, it is held
that the act must be willful or the negligence must amount to a reck-
less disregard of the safety of person or property: Sedgwick on Dam-
ages, 570, and notes." But in this case the court refused to allow
vindictive damages for injuries from an accident occurring while
the stagecoach was going down a mountain road at a walk, the
accident happening because of an imperfect and insecure brake and
the driver having used his best efforts to repair the brakes.
In Frick v. Coe, 4 Greene (Iowa), 559, 61 Am. Dec. 141, it was
held that where a stage passenger is injured by the employment of a
known drunken driver, the stage proprietor is liable in exemplary
damages, regardless of whether the driver had an "intent or de-
sign" to injure. The injury in this case happened in a level prairie
country. In Peck v. Neil, 3 McLean, 22, Fed. Cas. Xo. 10,892, ex-
emplary damages were allowed for injuries from tlie upsetting of a
stagecoach, which occurred llirough the stage-driver's racing with
an opposition coach and colliding with it, the court holding his acts
to be reckless. In Hawcs v. Knowlcs, 114 Mass. 518, 19 Am. Eop.
383, the defendant's servant driving his coach drove against the
w;igon of plaintiff wantonly, as well as carelessly and negligently.
The court held that the wantonness or mischief of the servant en-
hanced the damages recoverable. And in Dinsmoor v. Wolber, 85
Jan. 1904.] Crane v. Bennett. 765
111. App. 152, it was held that punitive damages were recoverable
where a farmer's servant returning from town, whence he had gone
on his master's business, maliciously, wantonly, willfully and reck-
lessly ran into plaintiff's buggy on the same road, thereby injuring
plaintiff.
3. From Negligent Sales of Poisons or Deleterious Substances. —
The cases in which exemplary damages are sought for the negligent
sale of poisons or deleterious substances are based on the gross
negligence of the person making the sale or filling the prescription,
since most of these cases arise through the mistakes of druggists or
their clerks. As a general rvile these cases seek merely compensatory
damages for the excruciating pains suffered by the victim, and hence
the qviestion of exemplary damages is not made the paramount issue.
The principles of law applicable to these cases has been stated in
several of the cases which will be noted here. Thus, in Fleet v.
IJoUenkamp, 13 B. Mon. 219, 56 Am. Dec. 563, a druggist was re-
quested to fill a prescription calling for a combination of snake-root
nnd Peruvian bark, made up into a powder. The clerk of the drug-
gist ground the herbs in a m.ill which had previously been used to
grind some of the x:)oisonous drug called cantharides or Spanish fly.
Some cantharides became intermingled with the powdered prescrip-
tion. Plaintiff took a portion of the mixture in the form of a tea
and became violently sick and suffered excruciating tortures. The
court went into the law relative to the duties of druggists very
exhaustively. The plaintiff had obtained at the trial a verdict for
eleven hundred and forty-one dollars and seventy-five cents, and
the amount thus recovered was attacked in the appellate court as
excessive. The court, in discussing the subject, said: "There is
no fixed and certain criterion of damages for personal injuries simi-
lar to those sustained by the plaintiff in this action. The question
as to their amount is within the sound and reasonable discretion
of the jury. The damages given may be more or less exemplary ur
otherwise, as the circumstances of aggravation or extenuation
characterizing each particular case may require. There is a class
of personal injuries, such as slander, libel, nmlicious prosecution, anil
including injuries to a person's health, business and property, caused
by indirect means, unattended with force, and for redress of which
the remedy is by an action upon the case and not by the action
of trespass, for which a jury may give exemplary damages, as well
when the action is in case as when it is in trespass; and whether
exemplary damages should or should not be given does not depenii
upon the form of the action so much as upon the nature and extent of
the injury done, and the manner in which it was inflicted, whether by
negligence, wantonness or with or without malice": Citing Merrills
V. Tax.^ Mfg. Co., 10 Conn. 388, 27 Am. Dec. 682; Linsey v. Bush-
7G6 American State Eeports, Vol. 101. [New York,
nell, 15 Conn. 235, 38 Am. Dec. 79; McLane v. Sharpe, 2 Harr. (Del.>
483.
In Hansford v. Pajme, 11 Bush, 380, the defendant, who was a
druggist by his prescription clerk, substituted croton oil for linseed
oil in a prescription, thereby causing the party to whom the ad-
mixture was administered great agony and pain, resulting in death.
The suit was by his personal representatives for "the wrongs, in-
juries and damages done him." The court deemed the action one
for an aggravated tort and held that plaintiff could recover. In
Smith v. Middleton, 112 Ky. 588, 99 Am. St. Rep. 308, 66 S. W. 388,
one of the latest cases in which the recovery of exemplary damages
in such cases was discussed, a woman called at defendant's drug-
store with an ordinary pillbox labeled "% grain calomel," and
asked for twenty-five cents worth of calomel iu one-fourth ^Tain
tablets. The clerk who waited on her was not a licensed pharma-
cist in charge of the store. The clerk instead of giving her calomel
tablets, as requested, gave her morphine tablets. The woman gave
threo of the tablets to her four year old son, who was complaining
of a cold, givingr the boy one tablet per hour for three successive
hours. The boy died. The court said: "On the trial of the case the
court refused to submit to the jury the question of punitive drvinagcs.
Whether this was upon the theory that the master, when a natural
person, is not liable to punitive damages because of the gross negli-
gence of his servant when upon his business and in the line of bis
employment, where care has been used by the master in the selection
of the servant, or whether it was upon the idea that there was no
evidence of gross negligence shown in this case, we are not in-
formed. The court is of the opinion that to put in charge of a
business of this kind one with authority to dispense such poisonous
and dangerous drugs as morphine [it was shown in this case that
these unlicensed clerks were allowed to sell this drug], where such
one gave such a deadly drug to one calling for 'calomel \i grain/
without notice of the true nature of the drug furnished, was of
itself such evidence of that degree of gross negligence that would
warrant a jury in finding punitive damages against such wrong-
doer. It is not suggested nor can we apprehend that it is in any wise
probable that the act of furnishing the wrong drug in this case wa.s
willful. If it was furnished by the clerk, it was undoubtedly a mis-
take and unintentional. However, it was a mistake of the gravest
kind and of the most disastrous effect. We cannot say that one
holding himself out as competent to handle such drugs, and who
does so, having rightful access to them and relied upon by those
dealing with him to exercise that high degree of caution and care
called for by the peculiarly dangerous nature of his business, can
be heard to say that his mistakes by which he furnished a customer
the most deadly of drugs for those comparatively harmless is not
Jan. 1904.] Crane v. Bennett. 767
in and of itself, gross negligence, and that of an aggravated form.
In a business so hazardous, having to do directly and frequently
with the health and lives of so great a number of people, the high-
est degree of care and prudence for the safety of those dealing with
such dealer is required. And that degree of care exacted of such
dealer will be required also of each servant intrusted by him with
the conduct of his calling." See, also, as having a bearing on the
liability of druggists for sales of poisons and deleterious drugs,
Smith V. Hays, 23 111. App. 244; Gwynn v. Duffield, 60 Iowa, 708, 55
Am. Eep. 286, 24 N. W. 523; McCubbin v. Hastings, 27 La. Ann. 713;
Norton v. Sewall, 106 Mass. 143, 8 Am. Eep. 298; Osborne v. McMas-
ters, 40 Minn. 103, 12 Am. St. Eep. 698, 41 N. W. 543; Thomas v. Win-
chester, 6 N. Y. 397, 57 Am. Dec. 455; Wohlfahrt v. Beckert, 92 N.
Y. 490, 44 Am. Eep. 406; Beekwith v. Oatman, 43 Hun, 255; Davis
V. Guarnieri, 45 Ohio St. 470, 4 Am. St. Eep. 548, 15 N. E. 350;
Brunswig v. White, 70 Tex. 504, 8 S. W. 85; Hargrave v. Vaughn,
82 Tex. 347, 18 S. W. 695; and authorities cited in monographic
note to Howes v. Eose, 55 Am. St. Eep. 255, on the liability of
apothecaries and druggists for negligence in compounding or selling
drugs.
V. Torts Affecting Eights to Property.
a. Trespass in G-eneral, — Inasmuch as a trespass is at law re-
garded as the joint and several act of those committing it, and the
injured person has his remedy against all or any of them (Gusdorff
v. Duncan, 94 Md. 167, 50 Atl. 574), the question as to the liability
of the master by reason of his servant's acts does not arise so very
frequently. The general rule which would seem to be applicable
to this class of eases was stated in Trauerman v. Lippincott, 39 Mo.
App. 487, in the following language: "From a consideration of these
cases it would appear that in actions in the nature of trespass there
must be, in order to justify exemplary damages, some element of
wantonness or bad motive. There need not be any personal ill-will
or spite toward the party injured for the wantonness, reckless or
lawless spirit may be displayed in a trespass against the property
of a stranger." In this same case exemplary damages were awarded
against the agent of the landlord under the following circumstances:
The plaintiff was a subtenant. The lease to the tenant provided
that he could not sublet without lessor's written consent, and that
a failure to keep or perform any of its covenants or agreements
should produce a forfeiture if so determined by the lessor. The land-
lord's agent knew that the tenant had sublet to the plaintiff with-
out having previously obtained permission to do so, and he received
the checks of the subtenant from the tenant as part payment when
the latter paid his rent. No forfeiture of the lease had been de-
clared. During the occupancy of the subtenant, the tenant surren-
dered his lease, leaving the subtenant in possession. The landlord's
768 American State Eepokts, Vol. 101. [New York,
agent sought to get the subtenant to vacate but he refused to do so,
whereupon the agent sent his servant and a carpenter to remove the
doors of the subtenant's apartment, which was resisted by the sub-
tenant, resulting in a scuffle and assault. The servant informed the
agent that he had taken off the doors and "v,-hat had happened."
He also inquired if he should take the door back and the agent
directed him not to do so. The servant was retained in the agent 's
employ.
In Gildersleeve v. Overstolz, 90 Mo. App. 518, the plaintiff, who
was a ticket broker, was a tenant of defendant and used the premises
leased from defendant for the purpose of conducting his business.
There were lawsuits between the parties in regard to the tenancy.
One evening after business hours, and after plaintiff had closed his
office, the defendant's agents and servants, acting under defendant's
direction, broke into the office through the rear wall, tore down a
partition belonging to the plaintiff, barred up the doors so that he
could not gain admission and put the room in charge of some private
detectives. The next day was Sunday and plaintiff was refused ad-
mission. On Monday morning the defendant's servants demolished
the front of the premises with a view to erecting another front, and
continued making alterations until they v^ere stopped by a writ of
injunction. The court held that an award of punitive damages was
not only warranted, but even called for, since defendant's conduct
was lawless, high-handed, oppressive and in utter disregard of plain-
tiff's rights.
In Gross v. Hays, 73 Tex. 515. 11 S. \Y. 52S', the court allowcl ex-
emplary damages in a case where the defendant deprived plaintiff
of the possession of premises occupied by him by changing the locks
on the door during the temporary absence of plaintiff's family from
the premises, and retaining plaintiff's property. It was shown tliat
plaintiff's acts were willful, illegal and malicious, and done with
intent to vex, harrass and oppress the plaintiff.
In Cosgriff v. Miller, 10 Wyo. 190, 98 Am. St. Eep. 977, GS Pac.
217, the defendant Cosgriff, who was engaged in the sheop industry,
knowing that plaintiff had leased the odd-numbered sections of land
in a large territory, directed his herders to drive his sheep upon tlie
odd-numbered sections, which were uninclosed, without making any
efforts to ascertain their boundaries as distinguished from the ad-
joining government land. The plaintiff IMiller drove the sheep off.
The facts showing the aggravations for which exeniplnry damages
were held proper were stated by the court (page 237) as follows:
"According to the testimony of Wagers [plaintiff's servant] after
he had driven the sheep off from the premises of plaintiff several
times, they were in each instance driven back; and the defendants
'put out armed men,' and their employ&s told Wagers that they had
instructions to kill every])ody bothering the sheep, whether on
Miller's land or the Ian J of anyone else. At the time of giving the
Jan. 1904.] Crane v. Bennett. 769
second notice to the defendants, one of them said to Wagers that
Miller had the law and their sheep were down there and could not
be moved. It is explained by the one making that remark that what
was intended thereby was that Miller could resort to law. Wagers
also testilied that at the same time one of the defendants said that
they would take their sheep to feed 'wherever it may be.' Mr.
Thomas Cosgriff admitted by his testimony that they had sent armed
men into the territory in question, and explained the matter by
saying that they had sent herders and always furnished them with
guns, if they had none of their own, for their own protection, and
'the protection of the herds against the depredations of wolves in any
form.' It has already been shown that defendants, notwithstanding
the notices from Miller, insisted upon grazing their sheep on all
uninclosed lands. This is not a case where defendants claimed any
ownership in the lands leased by Miller. Had they done so in good
faith upon some reasonable foundation, a different question would
have been presented. The right they claim (and doubtless it was
claimed in good faith) was to depasture, not their own premises, but
those of another. That sort of claim, although preferred in go'-d
faith, under a mistaken notion of the law, cannot be regarded as a
claim of right sufficient to absolve a trespasser from liability to ex-
emplary damages, where the case otherwise is such as to warrant
their infliction." The whole question of exemplary damages was
discussed very elaborately in this case, as also was the custom and
usage in regard to the right to graze upon the public lands.
b. Trespass Accompanied by Assault. — In those cases which in-
volve both a trespass to property and a personal assault by the party
committing the trespass, it is sometimes difficult to determine whether
the exemplary damages are sought on account of the trespass or on
account of the assault independent of the trespass. Some of these
cases have been adverted to in treating of assaults and batteries,
while others have been discussed in the preceding section. The
same general rules are naturally applicable as were shown to apply
in the other instances already mentioned. The cases involving the
features of a trespass accompanied by an assault frequently occur
in disputed claims to lands, and in efforts of collectors to retake
property sold on installments but the title to which remains in the
seller until fuUy paid.
In Barden v. Felch, 109 Mass. 157, there was a dispute as to the
ownership of a piece of land. The defendant, accompanied by his
servant, entered upon the land for the purpose of plowing it. The
plaintiff, who was a very old man, ordered him off from the land
and attempted to prevent the servant from using the plow. Tho
servant assaulted the plaintiff. The court said: "There was contra-
dictory evidence as to the assault and battery. According to tho
plaintiff's evidence, it was the joint act of the defendant and his
Am. St. Rep., Vol. 101—49
770 American State Eeports, Vol. 101. [Now York,
servant; but according to the defendant's evidence it was the act
of the servant in self-defense and contrary to the defendant's ex-
press command. The defendant requested the court to rule 'that he
was not responsible for the act of the servant, if done contrary to
his express command.' But we think this ruling was rightly re-
fused. Instead of it, the court gave correct instructions. After
stating correctly the legal rights, the court ruled 'that, if the defend-
ant was wrongly maintaining his entry by force, and employing his
servant so to do, he was liable for the act of his servant in main-
taining such entry, although the servant used more force than
he was authorized by the master to do; and that the plaintiff,
if in the right, could only use reasonable force in expelling
the defenc^nt, who was not liable for repelling unreasonable force. *"
These instructions were all that the case required. Much depended
on the question of title, and if the defendant was using force wrong-
fully, and employing his servant to assist him in doing a tortious.
act, his general purpose, the fact of his presence, his silence while-
the acts of violence were done, and his whole deportment during the
assault and battery by his servant, would be as significant as his
previous direction to the servant not to touch the plaintiff. The
facts as reported would authorize the jury to find the defendant
guilty, notwithstanding that direction." It does not clearly appear
in this case whether the plaintiff sought to recover exemplary or
merely compensatory damages, though the gist of the action seems
to have been the assault by tue servant.
The actions involving assaults by employes while retaking property
Bold conditionally are illustrated by the following cases: In Craven v.
Bloomingdale, 171 N. Y. 439, 64 N. E. 169, the defendant, who was
the 'proprietor of a large department store, was sued for a false
imprisonment caused by the driver of one of his delivery wagons,
who insisted on payment or return of an article delivered to the
plaintiff, which plaintiff had paid for, but the payment of whir-h
was not shown by the driver's book. The driver was employed un-
der a contract by which he was charged with the value of any mer-
chandise which might be lost, damaged or stolen after being placed
in his charge. The court said: "We have here presented the ques-
tion as to proper measure of damage in the case of a merchant, whose
servant, in the delivery of goods, caused the illegal arrest of a cus-
tomer. The fact that the master was not present when the arrest
was made does not necessarily absolve him from liability. If, on
the evidence, the jury could find that the master authorized the ar-
rest, or subsequently ratified it, he must respond in damages. In the
case before us it is not claimed the master directly authorized the
arrest of the plaintiff or ratified it when brought to his attention.
It was, however, a question for the jury to determine, if the evi-
dence warranted it, whether the manner in which the defendant eon-
Jan, 1904.] Crane v. Bennett. 771
ducted his business, through the intervention of the driver, consti-
tuted such a system as to render the act of the driver the act of the
master." And continuing the court said: "The driver's remark,
'I have got to have the stove or the money, because I am responsible
for it,' should be considered by the jury in determining whether
the driver acted for the defendant or himself. If the jury are to
pass upon the question whether a system existed in defendant 's busi-
ness authorizing this arrest, they must also consider the circum-
stances under which the driver was employed."
In O'Connell v. Samuel, 81 Hun, 357, 30 N. Y. Supp. 889, the
court sustained a judgment against the master and his servant for
an assault committed by the servant while attempting to obtain
payment or the possession of a baby carriage leased to the plaintiff
at a weekly rental, the title to pass to plaintiff on payment of a cer-
tain sum but with the right on default in payment to retake the
property. The plaintiff made default in her payments but refused to
allow the collector to retake the property, and resisted his attempt
to enter her house, but he overcame the resistance, tearing her dress
and inflicting bodily injury on her. The court held that the collector
in attempting to retake the property was acting in the business of
his employers, even though his actions in accomplishing his purpose
may have been or became willful on his part, and were contrary
to his instructions not to use forcible means to enter houses or do
acts of personal violence to get possession of property under circum-
stances like the one at bar.
In McClung v. Dearborne, 134 Pa. St. 396, 19 Am. St. Kep. 708,
19 Atl. 698, 8 L. R. A. 204, the plaintiff and his wife had purchased
an organ from another person; the person from whom they purchased
the organ had had the organ only on trial, with an agreement with
the owner [the defendant] that if she was pleased with it that she
would execute a contract for its purchase on the installment plan.
The defendant, who was in the organ-selling business, had a servant
whose duty it was to hunt and recover organs on which one or more
installments were unpaid, whether in hands of the original pur-
chasers or their vendees. He obtained admission to the house of the
j)laintiff by means of a falsehood and secured the number and
description of the organ. He represented to his employer that he
could recover the organ without a breach of the peace. His employer
furnished him a team and two negroes so as to recover the organ,
but directed him to be careful about the matter and not have any
row about it. He secured admittance to plaintiff's house again by
false pretenses and proceeded to remove the organ. The plaintiff's
wnfe and two sons resisted the removal and he thereupon assaulted
them. The plaintiff sued for the assault and recovered. The recov-
ery was sustained. The appellate court, in adverting to the direc-
tions of the defendant to the servant who seized the organ, said:
"These directions show that Dearborne knew the errand on which
772 American State Reports^ Vol. 101. [New York,
he sent his employes was one that was likely to result in trouble,
and would require to be managed with great coolness and care in
order to avoid collision and a breach of the peace. But however the
rule may be held in regard to the criminal liability of the master
under such circumstances, it is very clear that he cannot escape lin-
bility civilly by virtue of his instructions to his servant as to the
manner of doing an act which the servant is to undertake ou his
behalf. He knew that the invasion of McClung's house in the man-
ner contemplated was likely to excite indignation and resistance on
the part of the inmates, and that what ought to be done might have
to be determined under excitement, and without time for consultation
or reflection by his employes. Under such circumstances he put them
in his own stead, and he is bound by what they do in the effort to
do the thing which was committed to them"; citing Sanford v.
Eighth Ave. etc. E. E. Co., 23 N. Y. 343, 80 Am. Dec. 2S6; Lake
Shore etc. Ey. Co. v. Eosenzweig, 113 Pa. St. 519, 57 Am. Eep. 444,
6 Atl. 545; Pittsburg etc. Ey. Co. v. Donohue, 70 Pa. St. 119; Hays v.
Millar, 77 Pa. St. 238, 18 Am. Eep. 445; Garretzen v. Duenckol, 50
Mo. 104, 11 Am. Eep. 405. "The defendant was bound not only to
give proper instructions to his servants when sending them on such
an errand, but he was bound to see that his instructions were
obeyed." And continuing the court said: "The acts complained of
were committed in the course of, and as a means to, the accomplish-
ment of that for which they were sent. Let it be conceded that thoy
were instructed to do no wrong and that they were warned what not
to do, the master is nevertheless liable. When he sends them upr.u
an errand that exposes them to resistance and danger and the ex-
citements consequent upon the presence of such a state of things,
he must take the chances of their self-control and ability to obey.
If he finds the risk inconveniently expensive, he may condescend to
respect the homes of inoffensive citizens and rely on his legal
remedies for the recovery of any property to which he may chiiru
title hereafter."
Jan. 1904.] People v. Lochnee. 773
PEOPLE V. LOCHNEE.
[177 N. Y. 145, 69 N. E. 573.]
CONSTITUTIONAL LAW.— Tlie Court Inclines to so Construe
a Statute as to validate it. (p. 783.)
CONSTITUTIONAL LAW— Power to Regulate Bakeries. — It
is witnin the police power of the legislature to so regulate the
conduct of the business of carrying on bakeries as to best promote
and protect the health of the people, (p. 786.)
CONSTITUTIONAL LAW.— The Fact that a Provision of a
Statute is Part of the Labor Law does not establish that it is not also
a health law, if its provisions are germane to that subject, and if
sustainable as a health law, it cannot be declared unconstitutional
because made part of a statute purporting to regulate labor, (p. 787.)
CONSTITUTIONAL LAW.— A Statute Limiting the Hours of
Labor of Employes in a Bakery to sixty hours iu each week and ten
hours in one day is e^astitutional, because it must be assumed that
its object is to protect the health of such employes, (pp. 789, 790.)
Prosecution under section 384 of the Penal Code of iSTew
York, which provides that anyone who violates, or does not
comply with, article 8 of the labor law relating to bakeries and
confectioneries is guilty of a misdemeanor, and upon convic-
tion, must be fined for the first ofl'ense not less than twenty
nor more than one hundred dollars, and for the second offense
not less than fifty nor more than two hundred dollars, or be
imprisoned for not more than thirty days, or both such fine
and imprisonment. The indictment charged the defendant
with having been arrested and convicted in December, 1899, of
violating the labor law in permitting one of his employes to
work in his bakery more than sixty hours in one week, and,
having paid the fine imposed on such conviction, that the de-
fendant violated the same law in permitting and requiring an-
other employe to work more than sixty hours during the week
commencing April 19, and ending April 2G, 1901. A demurrer
to the indictment having been interposed, it was overruled,
and no further pleading being filed by the defendant, the in-
dictment was taken as confessed against hrni, and judgment of
conviction was entered thereon. This judgment was affirmed
by the appellate division l)y a divided court, and from the latter
judgment an appeal was taken to the court of appeals.
AYilliam S. Mackie and Smith 'M. Lindsley, for the appellant.
Timothy Curtin, for the respondent.
77-i American State Reports, Vol. 101. [New York,
*^'' PARKER, C. J. Defendant's conviction is under sub-
division 3, section oS-H of the Penal Code, whicli makes a vio-
lation of article 8, chapter 415 of the Laws of 1897, a misde-
meanor. The judgment is affirmed by the appellate division.
Defendant urges as ground for a reversal that article 8 — ■
■which on its face purports to be, as we shall see later, an exer-
cise of the police power of the state — offends against the ^'^^
first section of the fourteenth amendment to the United
States constitution. That section provides that "Xo state shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due pro-
cess of law, nor deny to any person within its jurisdiction tlie
equal protection of the laws." It is also claimed that the stat-
ute violates those provisions of the state constitution which de-
clare that "Xo member of this state shall be disfranchised,
or dcjirivcd of any of the riglits or privileges secured to any
citizen thereof, unless by the law of the land, or the judgment
of his peers" (Const., art. 1, sec. 1), "nor be deprived of life,
liberty or property without due process of law": Const., art.
1, sec. G.
The first case in which the fourteenth amendment is discussed
by the United States supreme court are the Slaughter-house
Cases. 83 U. S. 36, 21 L. ed. 39, wherein is challenged the Lou-
isiana statute aiithorizing the removal of noxious slaughter-
houses from the more densely populated part of New Orleans,
and their location where they could least affect the health and
comfort of the people, and to that end granting a corporation
exclusive right for twenty-five years to maintain slaugliter-
houses witliin three parisbes, containing between two hundred
tliousand and three hundred tliousand people, and including
Xew Orleans. This is held to lie a police regulation for the
health and comfort of the ])eoplc. and, therefore, within the
power of the state legislature, and not afTcctcd ])y the fourteenth
amendment, which tlie court says is not intended to interfere
with tlie exercise of police power by the states.
Tn Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 347.
28 L. ed. 923, the supreme court has before it a San Francisco
ordinance prohibiting work in public laundries within defined
territory from 10 P. ]\I. to 6 A. ]\I., claimed to be repugnant
to the fourteenth amendment. The court rules that tbe ordi-
nance is well within the police power, and in the conrse of the
opinion says: "Neither tlie amendment — broad and compre-
Jan. 1904.] People v. Lochner. 775
hensive as it is — nor any other amendment, was designed to
interfere with the power of the state, sometimes termed its
police power, to prescribe regulations *'*^ to promote the health,
peace, morals, education and good order of the people, and to
legislate so as to increase the industries of the state, develop its
resources and add to its wealth and prosperity" (page 31, 113
U. S., page 359, 5 Sup. Ct. Eep. and 28 L. ed. 923).
There are many interesting cases in the United States su-
preme court sustaining statutes of different states which in
terms seem repugnant to the fourteenth amendment, but which
that court declares to be within the police power of the states.
Among them are statutes declaring a railroad company liable
for damages to an employe, although caused by another em-
ploye (Missouri Pac. Ey. Co. v. Mackey, 127 U. S. 205, 8 Sup.
Ct. Eep. 1161, 32 L. ed, 107), fixing the damages at double
the value of the stock killed, when due to the neglect of a rail-
road company to maintain fences (Minneapolis etc. Ey. Co. v.
Beckwith, 129 U. S. 2G, 9 Sup. Ct. Eep. 28, 32 L. ed. 585);
requiring locomotive engineers to be licensed, and providing
that the railroad company employing them pay the fees of ex-
amination (Xashville etc. E. B. Co. v. Alabama, 128 U. S. 96,
9 Sup. Ct. Eep. 28, 32 L. ed. 352) ; requiring cars to be heated
otherwise than by stoves on railroads over fifty miles in length
(Xew York etc. E. E. Co. v. Xew York, 165 U. S. &2S,
17 Sup. Ct. Eep. 418, 41 L. ed. 853); providing for
immediate payment of wages by railroad comjianies to dis-
charged employes (St. Louis etc. Ey. Co. v. Paul, 173 U.
S. 404, 19 Sup. Ct. Eep. 419, 43 L. ed. 746) ; prohibiting op-
tions to sell grain (Booth v. Illinois, 184 U. S. 425, 22 Sup.
Ct. Eep. 425, 46 L. ed. 623) ; providing for inspection of mines
at expense of owners (St. Louis etc. Coal Co. v. Illinois, 185
U. S. 203, 22 Sup. Ct. Eep. 616, 46 L. ed. 872), and one de-
claring void all contracts of sales of stocks on margins: Otis
y. Parker, 187 U. S. 606, 23 Sup. Ct. Eep. 168, 47 L. ed. 323.
I shall caU special attention to but one other case, namelv,
Holden v. Hardy. 169 IT. S. 366, IS Sup. Ct. Eep. 383, 42 L.
ed. 780. In that case the court reviews at length many of the
cases arising under the fourteenth amendment, beginning with
the Slaughter-house cases. The case involves a Utah statute
providing that: "The period of employment of workingmen in
all underground mines or workings shall be eiglit hours per day,
•except in cases of emergency, where life or property is in immi-
nent danger." Violation is made a misdemeanor. The con-
776 American State Reports, Vol, 101. [New York,
viction of one Holden under that statute is affirmed by the
United States supreme court. It is argued by defendant in
that case that the statute has no relation to the health or safety
01 the public or the persons affected, or if so, only in a very
remote degree, while its direct and principal effect is to inter-
fere ^'^^ with the rights and liberties of the contracting par-
ties; that the right to contract contains three essential and in-
dispensable elements, guaranteed and protected by the United
States constitution, namely, "the right of the employer and
employe to agree upon (1) the character of the service to be
performed, (2) the amount to be paid for such service, and
(3) the number of houre per day during which the service is
to continue"; that the destruction or abridgment of one ele-
ment is a destruction or abridgment of the whole of said right
to contract; that the statute abridges the "privileges and im-
munities" in that it deprives the employer and the employe of
perfect freedom and liberty to pursue unmolested a lawful vo-
cation in a lawful manner; that the rights of the employer and
employe in that direction were unlimited before the adoption
of the fourteenth amendment, and that since its adoption it is
beyond the power of any state to make any laws abridging or
destroying such rights. This latter contention — which if sus-
tained would practically prevent all further development of the
police power on the part of the states — is overborne by the
court. Many cases passed upon by the court since the adop-
tion of the fourteenth amendment are cited furnishing illus-
trations tending to justify the boast of the devotees of the com-
mon law, that by the application of established legal principles
the law has been, and will continue to be developed from time
to time so as to meet the ever-changing conditions of our widely
diversified and rapidly developing business interests. The
court quotes from Mr. Justice Matthews in Hurtado v. Califor-
nia, 110 U. S. 516, 530, 4 Sup. Ct. Rep. Ill, 118. 28 L. cd. 232 :
"This flexibility and capacity for growth and adaptation is the
peculiar boast and excellence of the common law Tlic
constitution of the United States Avas ordained, it is true, by
descendants of Englishmen, who inherited the traditions of
English law and history; but it was made for an undefined
and expanding future, and for a people gathered and to be gath-
ered from many nations and of many ton,gues There is
nothing in ^laL'na Cbarta, riglitly construed as a broad charter
of public right and law. which ought to exclude the best ideas
of all svstems ^^^ and of every age; and as it was the charac-
Jan. 1904.] People v. Lochner. 777
teristic principle of the common law to draw its inspiration
from every fountain of justice, we are not to assume that the
sources of its supply have been exhausted. On the contrary, we
shall expect that the new and various experiences of our own
situation and system will mold and shape it into new and not
less useful forms." The court illustrates by forceful examples
the necessity of recognizing in legal decisions the change of con-
ditions. After calling attention to the fact that in the early
history of the country there was no occasion for any special
protection of a particular class, as we were almost purely an
agricultural country, it instances coal mining and the manu-
facture of iron. When these industries began in Pennsylvania
as early as 1716 they were carried on in such a limited way,
and by such primitive methods, that no special laws were
deemed necessary to protect operatives; but since that time
they have assumed such vast proportions in that and other
states, and developed so many dangers to the safety and life
of those engaged in them, that laws to meet such exigencies
have become necessary. It calls attention to many protective
statutes enacted in many different states providing for fire es-
capes in hotels, theaters, factories and other large buildings;
ir.spection of boilers; appliances to obviate the dangers inci-
dent to railroad and steamboat transportation; the protection
of dangerous machinery against accidental contact; the shor-
ing up of ventilation shafts ; means for signaling in mines' for
fresh air; the elimination as far as possible of dangerous
gases, and safe means of hoisting and lowering employes in
mines. It is said that statutes providing such safeguards ''have
been repeatedly enforced by the courts of the several states,
their validity assumed, and, so far as we are informed, they
have been uniformly held to be constitutional"' (Iloldcn v.
Hardy, 169 U. S. 36G, 394, 18 Sup. Ct. Eep. 383, 389, 42 L.
ed. 780), which, of course, means that the courts of the several
states making these decisions hold that such statutes do not
deprive citizens of any of the rights or privileges guaranteed
by the constitution, nor deprive them of property without duo
process of law, for every state constitution contains *^^ such
a provision or its equivalent. Of such illustration? the court
further says (page 387, 1G9 U. S., page 386. 18 Sup. Ct. Rep.
and 42 L. ed. 780) : "They are mentioned only for the ixirpose
of calling attention to the probability that other changes of no
less importance may be made in the future, and that while the
cardinal principles of justice are immutable, the methods by
778 American State Keports^ Vol. 101. [Xew York,
which justice is administered are subject to constant fluctuation,
and that the constitution of the United States, which is necessar-
ily and to a large extent inflexible and exceedingly difficult of
amendment, should not be so construed as to deprive the states
of the power to so amend their laws as to make them conform
to the wishes of the citizens as they may deem best for the pub-
lic welfare without bringing them into conflict with the supreme
law of the land." This broad-minded view — which is charac-
teristic of the development of the law by this great court since
the adoption of the fourteenth amendment — should, and doubt-
less will, be followed by the courts of the several states when-
ever called upon to determine whether statutes offend against
the provisions of state constitutions similar or equivalent to
the provisions of the fourteenth amendment. The cases cited,
and the reasoning of the court to which but brief reference is
here made, demonstrate that this statute does not offend against
the fourteenth amendment, and it necessarily follows that it is
not repugnant to equivalent provisions in our state constitu-
tion.
This court throughout all its history has maintained the
game position as that taken by the United States supreme court.
Many authorities could be cited in support of that assertion,
but none need he, for they are all in one direction.
The impossibility of setting the bounds of the police power
has up to this time prevented any court from attempting it,
and the reason for it is well stated by Judge Gray in People v.
Kwer, 141 X. Y. 129, 132,, 38 Am. St. Rep. 788, 36 N. E. 4,
2S L. E. A. 794. He says: "It is difficult, if not impossible,
to define the police power of a state; or, under recent judi-
cial decisions, to say where the constitutional boundaries lim-
iting its exercise aie to be fixed. It is a power essential to he
conceded to the state in tlie interest and for the welfare of its
citizens. We may say of it that when its ^•'*'* operation is in
the direction of so regulating the use of private ])ro])erty, or of
so restraining personal action, as manifestly to secure, or to
tend to the comfort, prosperity, or protection of the comniniiitv,
no constitutional guaranty is violated, and the legislative au-
tliority is not transcended." In that case the constitutionality
of section 292 of the Penal Code is questioned. That section
makes it a misdemeanor to exhibit as a dancer a female child
under fourteen years of age. The court denies that the stat-
ute violates our constitution because it deprives the mother, the
Jan. 1904.] People v. Lochner, 779
person arrested, of the rights and privileges secured to her by
the constitution.
In People v. Warden etc. 144 N. Y. 529, 39 ]S^. E. G8G, 27 L.
E. A. 718, the constitutionality of chapter 602 of the Laws of
1892 is challenged. The act provides for examination and
registration of master plumbers, and makes it a misdemeanor
for any person to engage in that trade without such registra-
tion. This court holds the statute to be within the police power
of the legislature, and, therefore, not repugnant to the consti-
tution. Judge Gray says in the opinion (page 535, 144 N". Y.,
page 688, 39 N. E. and 27 L. K. A. 718) : "There has been
much discussion upon the subject of what is a valid exercise
of the police power of the state through legislative enactment,
and there is little to be added to what this and other courts
have said. The police power extends to the protection of per-
sons and of property within the state. In order to secure that
protection, they may be subjected to restraints and burdens by
legislative acts. If the act is a valid and reasonable exercise
of the police power of the state, then it must be submitted to,
as a measure designed for the protection of the public and to
secure it against some danger, real or anticipated, from a state
of things which modifications in our social or commercial life
have brought about. The natural right to life, liberty and
the pursuit of happiness is not an absolute right. It must yield
Mdienever the concession is demanded by the welfare, health or
prosperity of the state. The individual must sacrifice his par-
ticular interest or desires if the sacrifice is a necessary one in
order that organized society as a whole shall be benefited.
That is a fundamental condition of the state, and which, in the
^^'* end, accomplishes by reaction a general good^ from which
the individual must also benefit."
In Health Department v. Pector etc., 145 X. Y. 32, 45 Am.
St. Rep. 579, 39 X. E. 833, the court considers a provision
of the Xew York consolidation act requiring that tenement
houses already erected shall be furnished by ihe owners with
water, "whenever they shall ])e directed so to do by the board
of health," "in sufficient quantity at one or more places on eaclr
floor, occupied or intended to be occupied by one or more fami-
lies." The health department served a notice requiring- de-
fendant to supply water, as commanded by the statute, in build-
ings owned by it. Defendant refused to do so, and an action
was brought by the health department to compel compliance.
Defendant contends in that case that the statute violates that
780 American State Eepoets, Vol. 101. [New York;,
provision of the state constitution which declares that no mem-
ber of this state shall "be deprived of life, liberty or property
without due process of law." This court holds that the statute
does not offend against the constitution, but that it is a valid
exercise of the police power; tliat the legislature, by virtue
of that power, can direct that improvements or alterations shall
be made in existing houses at the owners' expense when it
clearly appears that it tends in some plain and appreciable man-
ner to guard and protect the public; and that a compensation
need not be made to the owner in such case, the effect of the
act being not to appropriate private property, but simply to
regulate its use and enjoyment by the owner. Judge Peckham,
\\Titing the opinion of the court, says (page 43, 145 X. Y., page
836, 39 N. E. and 45 Am. St. Eep. 579) : "Laws and regula-
tions of a police nature, though they may disturb the enjoyment
of individual rights, are not unconstitutional, though no pro-
vision is made for compensation for such disturbances. They
do not appropriate private property for public use, but simply
regulate its use and enjoyment by the owner."
People V. Havnor, 149 N. Y. 195, 53 Am. St. Rep. 707,
43 X. E. 541, 31 L. R. A. 689, is a case as near the border
line perhaps as any to be found in this state — certainly very
much nearer to it than the case under consideration. It ex-
haustively considers the authorities in this state bearing upon
the police power. The case involves the constitutionality
^^^ of what is known as the Sunday barber law, which makes
it a misdemeanor for any person to carry on the business or
work of a barber on the first day of the week exce])t in the city
of Xew York and the village of Saratoga, where such business
or work may be carried on until 1 o'clock in the afternoon of
that day. The statute is held to be constitutional, because a
valid exercise of the police power. The opinion is written
b-\ Judge Yann. After a careful examination of the autliori-
ties he presents the underlying question in this way (149 N.
Y. 201, 52 Am. St. Eep. 707. 43 X. E. 543, 31 L. E. A. 689) :
''The vital question, therefore, is whether the real purpose of
the statute under consideration has a reasonable connection
with the public health, welfare or safety." After stating tliat
the object of tlie act is to require the observance of Sunday,
not as a holy day, but as a day of rest and recreation, he pro-
ceeds— with argument buttressed by authority in this state
and in other jurisdictions — to answer the question Tn the af-
hrnuitive. In the course of the argument he says, page ^03 :
Jan. 1904.] People v. Lochner. 781
■'^^ccording to the common judgment of civilized men, public
economy requires, for sanitary reasons, a day of general rest
from labor, and the day naturally selected is that regarded
as sacred by the greatest number of the citizens, as this
■causes the least inconvenience through interference with busi-
ness. It is to the interest of the state to have strong, robust,
healthy citizens, capable of self-support, of bearing arms, and
of adding to the resources of the country. Laws to effect this
purpose, by protecting the citizen from overwork and requiring
a general day of rest to restore his strength and preserve his
health, have an obvious connection with the public welfare.
.... The statute under discussion tends to effect this result,
because it requires persons engaged in a kind of business that
lakes many hours each day to refrain from carrying it on dur-
ing one day in seven. This affords an opportunity, recurring
at regular intervals, for rest, needed both by the employer
and the employed, and the latter, at least, may not have the
power to observe a day of rest without the aid of legislation.
.... As barbers generally work more hours each day than
most men, the *®^ legislature may well have concluded that
legislation was necessary for the protection of their health."
The pertinency and controlling force of that argument to
the question under consideration here will be manifest when
wc come to an examination of the statute.
Xo authorities can be found in this court which conflict with
the cases to which I have called attention. IJodgers' Case (Peo-
ple V. Color), IGG X. Y. 1, 82 Am. St. Pep. 605, 59 X. E. 716, 52
L. P. A. 814, is cited in opposition, but why I cannot see.
The police power is not even considered in that case. The
defense to tliat portion of the statute which is condemned as
unconstitutional because it requires a stipulation in all con-
tracts with the state and municipalities that the contractor
shall "pay the prevailing rate of wages at least," being rested
on the ground (1) that the state as proprietor can do what
an individual proprietor can do, namely, insist upon any rea-
sonable provision in a contract as a condition for doing the
work: (2) that the state is proprietor not only as to contracts
for work for the benefit of the entire state, but also as to con-
tracts for work authorized by it for the various subdivisions
of the state made for convenience of administration; (3) that
lience it violates no provision of the constitution.
Having shown by an examination of a few of the leading
authorities relating to the police power that the decisions of
782 Amekican State Eeports^ Vol. 101. [New York,
tliis court are in liarmony with those of the United States su-
preme court, and having specially brought out some of the ar-
gument in those decisions for the purpose of presenting some-
thing of the vast scope of that power, we come next to the
question, In what spirit should the court approach the consid-
eration of a statute said on the one hand to offend against the
constitution, and on the other to be a proper exercise of the
police power?
The courts are frequently confronted with the temptation
to substitute their judgment for that of the legislature. A
given statute, though plainly within the legislative power, seems
so repugnant to a sound public policy as to strongly tempt the
court to set aside the statute, instead of waiting, as the spirit
of our institutions require, until the people can compel their
representatives to repeal the obnoxious statute.
^^"^ In the early history of this country eminent writers gave
expression to the fear that the power of the courts to set aside
the enactments of the representatives chosen to legislate for the
people would in the end prove a weak point in our governmental
system, because of the difficulty of keeping the exercise of such
great power within its legitimate bounds. So far in our ju-
dicial history it must be said that the courts have in the
main been conservative in passing upon legislation attacked
as unconstitutional, but occasionally, and especially when a
case is one on the l)order line, it is quite possible that the
judgment of the court that the legislation is unwise may ojier-
ate to carry the decision to the wrong side of that border line.
Certain it is that the courts have greatly extended their ju-
risdiction over many administrative a-cts that were originally
supposed not to present cases for the court to pass upon, and
in that way the courts have come to play a very imjjortant
part in state and municipal administration. Some expression
of our views on that sul^ject is given in ]\Iatter of Guden, ITl
X. Y. o20. 535, 04 X. E. 451."
Xnw, when considering the mental attitude with which the
court sliould ])egin an examination of this question, it is well
to liavc in mind not only the great breadth and scojio of the
])olico power, and the legislative control over it as cx])rcssed
in some of the o]»inions from wbicli we quote sujira. l)ut it is
also well to liave in mind some of the expressions of this court
as to the way in wbieli the court should approach the consid-
eration of such a question as this, involving the constitution-
ality of a statute.
Jan. 1904.] People v. Lochxer. 783
Judge Andrews says, in People v. King, 110 N". Y. 41(S,
423, 6 Am. St. Eep. 389, 18 N. E. 245, 1 L. R. A. 293 : "By
means of this power the legislature exercises a supervision over
matters affecting the common weal It may be exerted
whenever necessary to secure the peace, good order, health,
morals and general welfare of the community and the propriety
of its exercise within constitutional limits is purely a matter
of legislative discretion with which courts cannot interfere."
Judge Gray says, in Xecliamcus' Case: "The ^^^ courts
should always assume that the legislature intended by its
enactments to promote those ends [public health, comfort and
safety], and if the act admits of two constructions, that sliould
be given to it which sustains it and makes it applicable in
furtherance of the public interests": People v. Warden etc.,
144 N. Y. 529, 53G, 39 N". e. 686, 688, 27 L. E. A. 718.
"Whether the legislation is wise is not for us to consider.
The motives actuating and the inducements held out to the
legislature are not the subject of inquiry by the courts, which
are bound to assume that the law-making body acted with a
desire to promote the public good. Its enactments must stand,
provided always that they do not contravene the constitution,
and the test of constitutionality is always one of power — noth-
ing else. But in applying the test the courts must bear in
mind that it is their duty to give the force of law to an act
of the legislature whenever it can be fairly so construed and
applied as to avoid conflict with the constitution": Bohmer
V. Haffen, 161 N. Y. 390, 399, 55 N". E. 1047, 1048.
Where there "is room for two constructions, both equally
obvious and reasonable, the court must, in deference to the
legislature of the state, assume that it did not overlook the
provisions of the constitution, and designed tlie act .... to
take effect. Our duty, therefore, is to adopt the construction
which, without doing violence to the fair meaning of the words
used, brings the statute into harmony with the provisions of
the constitution": Supervisors v. Brodgor, 112 U. S. 261, 268,
5 Sup. Ct. Eep. 125, 28 L. ed. 704; People v. Supervisors of
Orange Co., 17 N. Y. 236, 241 ; People v. Albertson, 55 X. Y.
50, 54; Gilbert El. By. Co. v. Henderson, 70 X. Y. 361. 367;
New York etc. Bridge Co. v. Smith, 148 X. Y. 540, 551, 43
X. E. 1088, 1091.
The court is inclined to so conh^true the statute as to validate
it: People v. Equitable Tru>t Co.. 96 X. Y. 3S7, 304; People
V. Terry, 108 X. Y. 1, 7, 14 X. E. 815; :\Iatter of Xcw York
784 American State Reports^ Vol. 101. [New York,
El. R. R. Co., 70 N. Y. 327, 342 ; People v. Angle, 109 X. Y.
56-4, 567, 17 N. E. 413; Rogers v. Common Council of
i5» Buffalo, 123 N". Y. 173, ISl, 25 N. E. 274, 9 L. R. A.
579; People v. Rice, 135 N. Y. 473, 484, 31 N. E. 921, 16
L. R. A. 836.
"Every act of the legislature must be presumed to be in
harmony with the fundamental law until the contrary is clearly
made to appear": People v. Durston, 119 N. Y. 569, 577, 16
Am. St. Rep. 859, 24 N. E. 6, 7 L. R. A. 715.
"Before an act of the legislature can be declared void as
repugnant to the constitution, the conflict must be manifest"' :
Matter of Stihvell, 139 N. Y. 337, 341, 34 N. E. 777.
"If the act and the constitution can be so construed as to
enable both to stand, and each can be given a proper and legiti-
mate olTice to perform, it is the duty of the court to adopt such
construction": People v. Rosenberg, 138 N. Y. 410, 415, 34
N. E. 285.
The statute under consideration in that case is held to be
within the police power, as is the statute considered in the
following case.
"It is not necessary to the validity of a penal statute that
the legislature should declare on the face of the statute the
policy or purpose for which it was enacted" : People v. West,
lOG X. Y. 293, 297, 60 Am. Rep. 452, 12 N. E. 610.
Having considered the authorities bearing upon the sul)ject
of the exercise of police power at greater length tlian could
be justified were it not for the different view that obtains in
this court as to the autbority of tlie Icgishiture to pass the
statute in question, and liaving glanced at a few authorities
indicating the frame of mind in which the court should ap-
proach the consideration of the question of the constitution-
ality of an act of the legislature — we come to the considera-
tion of tlie statute in question, aided by the principles estal)-
li^hed by tbe Ignited States supreme court and the courts of
tbis state, to wbieh reference has been made.
I quote tbe whole statute, notwitbstanding its lengtli, in or-
der that it may be at once determined upon its mere read-
ing wbether tbe ])urpo?e of tbe legislature was to subserve, in
pome measure, tbe public good under the jwlice power of the
state.
Jan, 1904.] People v. Lochner. 785
ICO "ARTICLE VIII.
"Bakeries and Confectionery Establishments.
"Sec. 110. Hours of labor in haheries and confectionery
establish meiits. — Xo employe shall be required or permitted
to work in a biscuit, bread or cake bakery or confectionery
establishment more than sixty hours in any one week, or more
than ten hours in anyone day, unless for the purpose of mak-
ing a shorter work day on the last day of the week; nor more
hours in any one week than will make an average of ten hours
per day for the number of days during such week in which
such employe shall work.
"Sec. 111. Drainage and plumbing of buildings and rooms
occupied by bal-eries. — All buildings or rooms occupied as
biscuit, bread, pie or cake bakeries shall be drained and
plumbed in a manner conducive to the proper and healthful
sanitary condition thereof, and shall be constructed with air
shafts, windows, or ventilating pipes, sufficient to insure ven-
tilation. The factory inspector may direct the proper drain-
age, plumbing and ventilation of such rooms or buildings. ISTo
cellar or basement, not now used for a bakery shall hereafter
be so occupied or used, unless the proprietor shall comply with
the sanitary provisions of this article.
"Sec. 113. Bequirements as to rooms, furniture, utensils and
manufactured products. — Every room used for the manufacture
of flour or meal food products shall be at least eight feet in
height and shall have, if deemed necessary by the factory in-
spector, an impermeable floor constructed of cement, or of tiles
laid in cement, or an additional flooring of wood properly
saturated with linseed oil. The side walls of such rooms shall
be plastered or wainscoted. The factory inspector may require
the side walls and ceiling to be wliitewashed at least once in
three monilis. lie may also require th.e woodwork of such
walls to be painted. The furniture and utensils shall be so
arranged as to be readily cleansed and not prevent the proi)er
cleaning of any part of tlie room. The manufactured flour
or meal food products shall be kept in dry and airy rooms so
arranged th.t the floors, slielves and other facilities ^^^ for
storing the same can be properly cleaned. ISTo domestic ani-
mals, except cats, shall be allowed to remain in a room i;?ed
as a biscuit, bread, pie, or cake bakery or any room in such
bakerv whore flour or meal products are stored.
"Sec. 113. Wasli-rooins and closets; sleeping places. — Everv
such bakery shall be provided with a proper wash-room and
Am. "st. Rep., Vol. 101—50
786 American State Reports^ Vol. 101. [New York,
water-closet or water-closets apart from tlio I ako-room, or rooms
wliere the manufacture of such food product is conducted, and
no water-closet, earth-closet, privy or aslipit shall be within or
connected directly with the bake-room of any bakery, hotel
or public restaurant.
*'Xo person shall sleep in a room occupied as a bake-room.
Sleeping places for the jx^rsons employed in the bakery shall
be separate from the rooms where flour or meal food products
are manufactured or stored. If the sleeping places are on the
same floor where such products are manufactured, stored or
sold, the factory inspector may inspect and order them put
ir a proper sanitary condition.
"Sec. 111. Inspection of haJierics. — The factory inspector
sliall cause all bakeries to be inspected. If it be found upon
such inspection tluit the bakeries so inspected are constructed
and conducted in compliance with the provisions of this chap-
ter, the factory inspector shall issue a certificate to the per-
sons owning or conducting such bakeries.
''Sec. 115. Notice requiring alterations. — If, in the opinion
of the factory inspector, alterations are required in or upon
premises occupied and u?ed as bakeries, in order to comply
witli the provisions of this article, a written notice shall be
served by him upon the owner, agent or lessee of such prem-
ises, either personally or by mail, requiring such alterations to
be made witliin sixty days after such serviee, and such altera-
tions shall be made accordingly."
That the jiublic generally are interested in having bakers" and
confectioners' establishments cleanly and wholesome in this day
of a])preciation of, and apprehension on account of, microbes,
which cause disease and death, is beyond question. Xot many
yeai's ago the liaking was largely done iii tlie ^"' faniilv: but
now in a lai'go percentage of the houses in cities and villages
the baker is relied on to a large extent to furnish bread, biscuits,
cake and pie, as well as confectionery, while over manv coun-
irv roads the l)a]<frs' wagons go twice a week or more to supply
the farmers and inhabitants of small settlements with their
wares. Indeed, it can be safely said that tlie faniily of lo-day
is more dep<'ndent u})on the baker for the necessaries of life
tlian upon any other source of supply. Tliat being so it is
within the police power of tlie legislature to so regidate the
conduct of that business as to Ijcst promote and ])rotect the
healtli of the jicople. And to that end the legislature under-
takes to provide — by a statute which bears on its face evidence
Jan. 1904.] People v. Lochner. 787
of an intelligent draftsman acquainted with the dangers of un-
sanitary conditions in such establishments — for proper drain-
age and plumbing of the building and rooms occupied for such
purpose.
Is there room to doubt that the sole purpose of the legis-
lature in prohibiting the use of cellars for bakeries unless the
occupant first complies with the sanitary provisions of this ar-
ticle is to protect the public from the use of the food made
dangerous by the germs that thrive in darkness and unclean-
ncss? Is it possible that anyone can question that the sole
purpose of the legislature is the safeguarding of the public
health when it provides for floors, ceilings and sidewalls of
such material as that they may be readily cleansed; compels
the keeping of flour or meal food products in dry and airy
rooms, so arranged that the storing facilities can be properly
cleaned, and prohibits the keeping of domestic animals within
such rooms? And will anyone question the motive which in-
duced the proliibition of a "water-closet, earth-closet, privy or
ashpit .... witliin or connected directly with the bake-room
of any bakery, hotel or public restaurant" ? If not, why should
anyone question the object of the legislature in providing in
the same article and as a part of the scheme that "no em-
ploye shall be required or permitted to work" in such an es-
tablishment "more than sixty hours in any one week," an
average of ten hours for each working day. It is ^^^ but
reasonable to assume from this statute as a whole that the
legislature had in mind tliat the health and cleanliness of the
workers, as well as tlie cleanliness of the workrooms, was of
the utmost importance, and tliat a man is more likely to be
careful and cleanly when Avell, and not overworked, than when
exhausted by fatigue, which makes for careless and slovenly
habits, and tends to dirt and disease.
If there is opportunity — and who can doubt it — for this
view, then the legislature had the power to enact as it did, and
the courts are bound to sustain its action as justified by the
police power, as we sec from the authorities referred to earlier
in this opinion.
I hear but one argument advanced for the purpose of con-
vincing the mind that the object of tliis statute is not to pro-
tect the public, and that argument is that article 8 is to be
found in the- laiior law. Therefore, it is said it js a labor law,
not a health law.
788 American State Reports, Vol. 101. [New Yoik,
The question presented by that argument is, Does the label
or the body of the statute prevail? Does calling a statute
names deprive it of its intended and real character ? If a stat^
ute relating principally to banking happens, in the course of
codification, to be incorporated as an article in the general cor-
poration law, does it cease to operate on the banking business?
I submit without argument that the questions answer them-
selves.
Assuming, however, for the purpose of argument only, that
the label is of such substantial importance that it may be
accepted as against the obvious meaning of the statute, then I
say that article 8 bears its own title, which is: "Bakeries and
Confectionery Establishments." All that is contained in that
article relates to bakeries and confectionery establishments and
their conduct, and to no other subject wliatever. Therefore,
it is fully, appropriately and harmoniously entitled.
Again, inasmuch as it is obvious, as we have seen, from a
mere reading of the statute, that the legislative purpose is to
benefit the public, we must assume — even if the object of the
legislature in limiting the hours of work of employes is not to
-•^^^ protect the health of the general public, who takes the
wares made by such employes — tliat the legislature intends to
protect the health of tbe employes in such estahlislnnents; that,
for some reason sufficient to it, it has reached the conclusion
that in work of this character men ouglit not to be employed
more t^ian an average of ten hours a day. Now that being so
— and certainly no more restricted view of that statute can be
taken by tliose who would destroy it^ — we find that the action
of the legislature is within the police power not only under the
authorities of the United States, but of this state, and of this
court.
Special attention has already been called to Ilolden v. Hardy,
lfi9 U. S. 3G6, 18 Sup. Ct. Kep. 383, 42 L. ed. 780. A Utah
statute making it a misdemeanor to employ a man more than
eiglit lio\irs per day in "underground mines or workings" is
sustained, and a conviction thereunder uplield, bv the United
States supreme court, on the ground that it is within tlie police
power of tlie state to pass such a statute. That interesting
case — to which 1 liave made extended reference, supra — is in
point and controlling so far as the fourteenth amendment is
concerned, and should be controlling in this court so far as
equivalent provisions of our state constitution are concerned.
Jan. 1904.] People v. Lochner. 789
It must, also be held, under the authority of People v. Hav-
nor, 149 N. Y. 195, 52 Am. St. Eep. 707, 43 N^. E. 541, 31
L. P. A. 689 — even though it may he assumed from the read-
ing of the statute that the object of the legislature is to pro-
tect employes in such establishments from working more than
ten hours a day — that it is within the police power, and, there-
fore, not repugnant to the state constitution. The statute
which that case passes upon makes it a misdemeanor to carry
on the business of a barber on the first day of the week, and
a judgment of conviction under that law is affirmed in this
court because "the statute under consideration has a reasonable
connection with the public health, welfare or safety." Cer-
tainly if this court could so hold in that case it must so hold
in this, even under the construction of the statute wliich those
would give to it who are affected by the fact that article 8,
chapter 33 of the General Laws is grouped with twelve other
articles, the compilation being known as the labor law, *^® in-
stead of being in the domestic law with articles entitled, "flour
and meal," "beef and pork," or in the "public health law" with
articles such as "adulteration," "practice of medicine," or the
like.
Again, many medical authorities classify workers in bakers*
or confectioners' establishments with potters, stone cutters,
file-grinders and other workers whose occupation necessitates
the inhalation of dust particles, and hence predisposes its mem-
bers to consumption. The published medical opinions and vital
statistics bearing \ipon that subject standing alone fully jus-
tify the section under review as one to protect the health of
the employes in such establisliments, nnd it is the duty of this
court to assume that tlie section was framed not only in the
light of, but also with full appreciation of the force of tlie
medical authority bearing upon the subject — authority which
reasonably challenges the attention, and stimulates the help-
fulnops of the pliilanthropist.
The conclusion necessarily folloM'S, tlicrcfore, from an ex-
amination of the statute in the light of the authorities cited,
tliat the purpose of article 8, and every part of it, including
the provision in question, is to benefit the public; that it has
a just and reasonable relation to the public welfare, and hence
is within the police power possessed by the legislature. But if,
in violation of the duty of the court as stated in Supervisors
V. Brodger, 112 U. S. 268, 5 Sup. Ct. Pep. 125, 28 L. ed. 704—
which is "to adopt the construction which, without doin"- vio-
790 American State Reports, Vol. 101. [Xew York,
lence to the fair meaning of the words used, hrinsrs the statute
into harmony with the provisions of the constitution" — we
award to the title of a general law such potency as causes it to
overcome hoth the title and the provisions of an article therein^
thus making the provision a labor law, we are still required
to hold that it is within the police power.
The judgment should be affirmed.
GRAY, J, I shall concur with the chief judge, whose opin-
ion I regard as carefully expressed and convincing in its rea-
soning. The question for us is, in the first place, whether,
**** notwithstanding its embodiment in the labor law, we may
treat the statutory provision in questioo, as a health law and
in the next place, if we may do so, whether its enactment is a
reasonable exercise of the police power of the state, which the
courts should give effect to. I am of the opinion that its
being placed in the labor law furnishes no adequate reason
for limiting its reading and construction by those considera-
tions, which appertain to laws passed, strictly, in the interest
of labor, if, from its associalion with other provisions, in pari
materia, a different and independent purpose is disclosed. To
deprive a health law of its intended operation, ])ecause it is
not found in the statute book under that, or a kindred, title,
would be, in my opinion, to apply an unreasonable and an
unsatisfactory test' of its validity. If the court concludes that
the intent of an enactment in some valid exercise of the police
power is to regulate some particular trade or occupation, then,
clearly, it should be quite immaterial under what heading it
appears to be classified in tlie statutes. It would not do to
nullify the will of the people upon so technical and narrow a
consideration. Therefore, I think we may proceed, Ijcyond
ihat ground, to the determination of the question whether, if
a health law, the one hundred and tenth section of this article
8 was reasona])le and, therefore, a valid exercise of the police
power. If it stood alone, unaccompanied and unexplained bv
cognate provisions, I should incline to tlie view tliat tlie en-
actment was imconstitutional. It miglit, justly, bo held to fall
within that class of legislation wliich has rccei\c.l judicial con-
demnation, because, as a regulation of the liours of tlie em-
ployed, its object would appear to be for their protection against
the exaction of a disproportionate amount of work for the wages
paid. That would be to infringe upon the liberty of contract.
But I think we must read the section in connection with those
Jan. 1904.] People v. Lociiner. 791
sections which immediately follow, and then it is that we find
it to be made certain that the object of the legislative enact-
ment had relation to the conservation of the public health.
We perceive that the legislature is dealing with the workings
of a business conducted upon a scale, calling for the employ-
mcDt *^'' of more or less laborers, and which is affected by a
public interest, in the sense that the food product may sensibly
depend for its healthful'ness upon the observance of sanitary
rules and precautions. Such precautionary regulations may
involve, as well, the establishment of proper conditions to in-
sure the maintenance of the normal vitality of the workman,
af- the wholesomeness of the general environment. We must
presume that the legislative body was animated by a reasonable
intention to promote the public welfare and if tlie courts can
give effect to it, because lending to guard the public health,
they should, unhesitatingly, do so. Legislation will not be al-
lowed, arbitrarily, to interfere with the personal liberty of the
citizen, under the specious guise of an exercise of the police
power, and therefore it is, that our courts may supervise, as a
judicial question, a determination of the legislature to exercise
the police power in restraint of some trade, or calling. It is
true that the tendency has been growing in the direction of an
cxces?; of paternalis^m in government and that the courts of this
and of other states have, rather, hastened to uphold legislative
interference with the pursuits of citizens, upon any plausible
Tirotext of its being in furtherance of the general welfare. The
federal supreme court has, in the broadest terms, recognized
the power of tlie individual states to exercise a police power
of internal regulation; when the object is tx) promote by
reasonable laws the public safety, health and comfort. To the
legislative body is conceded the power to govern men and the
affairs of men, through the establishment of such rules and
regulations as may be conducive to the public betterment, be-
cause tending to the protection of the lives, health and comfort
of persons and the protection of property, and that concession
has been, in my opinion, at times, more broadly made in the
decisions of the courts, than the conservative spirit of our
democratic form of government will justify. But that the leg-
islature has, and should have, the broadest authority to exercise
a police power of internal regulation, in the direction of pro-
tecting the peace, the safety and ^*^ the health of the com-
munity I fully concede. In this law, which restricts the work-
ing hours of employes in bakery and confectionery cstablisli-
792 Americus^ State Reports, Vol. 101. [New Yorky
ments, I think we may, fairly, perceive a statutory regulation,
reasonably promotive of the public health, because compelling
the master of such an establishment to conduct it in a manner
the lea^t capable of affecting his product prejudicially. We
may, not unreasonably, assume that an employe may work too
long for his health under the conditions, and that an impaired
vitality and the possible development of organic diseases may
be the result. If, to obviate the possible consequences to the
consumer of the food manufactured, the legislature determines
to interfere, by limiting, among other regulations, the hours of
the workman, I do not think we should hold the interference
to be without reason.
VANN, J. I concur in the result reached by the chief judge,
for the following reasons: The power of the legislature to pass
what it may consider ''health laws'' is not unlimited, but is
bounded by the duty of the courts to determine whether the act
has a fair, just and reasonable relation to the general welfare:
Matter of Jacobs, 98 N. Y. 98, 108, 50 Am. Rep. G36; People
V. Gillson, 109 N. Y. 389, 401, 4 Am. St. Rep. 4G5, 17 N. E.
o43; People v. Havnor, 149 N. Y. 195, 200, 52 Am. St. Rep.
707, 43 N. E. 541, 31 L. R. A. G89.
As was said by the court in the Gillson case : "Under an
exercise of the police power the enactment must have some
relation to the comfort, the safety, or the welfare of society, and
it must not be in conflict with the constitution. The law will
not allow the rights of property to be invaded under the guise
of a police regulation for the protection of health, when it is
manifest that such is not tlie object and purpose of the regula-
tion It is generally for tlie legislature to determine
what laws and regulations are needed to protect the public
health and serve the public comfort and safety and if its
measures are calculated, intended, convenient or appropriate
to accomplish such ends, the exercise of its discretion is not the
subject of judicial review."
We have before us simply that part of tlie labor law ^^^ which
regulates the hours of labor in bakeries and confectionery estab-
lishments by limiting them to not exceeding sixty per week and
ten per day, "unless for the purpose of nuiking a sliorter work
day on tlie last day of the week."
The draftsman of this statute apparently used as a model
"the bakehouse regulation act" passed by the English parlia-
men't in l6G3j but he went far beyond that pattern in limiting
Jan. 1904.] People v. Lochner. 793
the hours of labor, for the New York statute applies to all em-
ployes in bakeries, while the English act makes no regulation
of hours per day or week, but simply prohibits the employment of
persons under eighteen years of age between 9 at night and 5
in the morning: 26 & 27 Victoria, cap. 40. Both acts contain
similar provisions to secure cleanliness and ventilation of the
rooms used to carry on the business, as well as the separation of
sleeping apartments therefrom, none of which are now called in
question,
I do not think the regulation in question can be sustained,
unless we are able to say from common knowledge that work-
ing in a bakery and candy factory is an unhealthy employ-
ment. If such an occupation is unhealthy the legislature had
the right to prohibit employers from requiring or permitting
their employes to spend more than a specified number of hours
per day or week in the work, because such a command would be
ill the interest of the public health and would promote the gen-
eral welfare. As in the Jacobs case, we took judicial notice of
the nature and qualities of tobacco (page 113), so in this case
we may take judicial notice of the effect of very fine particles
of flour and sugar when inhaled into the lungs from the heated
atmosphere of manufactories of bread and candy. Xccessarily
in considering the subject we may resort to such sources of in-
formation as were open to the legislature.
Vital statistics show that those vocations which require per-
sons to remain for long periods of time in a confined and heated
atmosphere filled with some foreign substance, which is inhaled
into the lungs, are injurious to health and tend to shorten life.
Bakers and confectioners, who, during working hours, constantly
breathe air filled with the finest dust from ^''^ flour and sugar,
have a tendency to consumption, the most terrible scourge
known to modern civilization and resulting in more deaths tlian
any other disease: 1 People's Cyclopedia, 479; JMulhali's Dic-
tionary of Statistics, 193 and 683.
Thus in the article on phthisis in volume 18 of last edi-
tion of the Encyclopedia Britannica it is said: "Occupations
which necessitate the inhalation of irritating particles, as in the
case of stone-masons, needle-grinders, workers in minerals, in
cotton, flour, straw, etc., are especially hurtful, chiefly from tlie
mechanical effects upon the delicate pulmonary tissues of the
matter inhaled. ISTo less prejudicial are occupations carried on
in a heated and close atmosphere, as is often the case witli com-
positors, goldbeaters, semptresses, etc."
794 American State Reports, Vol. 101. [Xew York,
So in Alden's Encyclopedia, volume 9, title "Consumption/'
the following occurs: "Often the workshops of tailors, printers,
bakers and other businesses carried on in close, ill-ventilated
apartments by large numbers of working people are nurseries
of consumption."
We quote from a few more out of many authorities to the same
effect: "It is certain that much might be done to improve the
public health in this respect by more attention on the part of
the employers of labor to the comfort and habits of those who
are, in more senses than one, their 'hands' and the sources of
their prosperity. A certain kind of improvement has, indeed,
been already effected by the improved living of the working
classes during the last twenty years. Still it is well known and
p]-oved by careful inquiries that the workshops of tailors,
printers, bakers and other businesses carried on in close, ill-
ventilated apartments, by large numbers of workmen are, in a
very aggravated sense, nurseries of consumption The
cutters and needle-grinders of Sheffield appear to owe their
notoriously short lives to consumption brought on by the in-
halation of metallic particles in tlie close and stifling atmos-
phere of their workshops Even admitting, therefore,
that the causes of consumption may be part practically irre-
movable, there seems no reason to doubt that very much might
Ije done to diminish *'* its prevalence, as well as to arrest its
course wlien already formed, by due attention to the comfort
of the laboring population, both in their dwellings and in the
pursuit of their occupations": 4 International Cycloju'dia, 2Sij.
"rartieular occupations predispose (to consumption), es-
pecially such as occasion constant inhalation of small particles":
2 Jolmson's Cyclopedia, 488.
"Thus tailors, seamstresses and similar workers are especially
prone to the tlisease. More especially is this true of occupatinns
whose perrorniance necessitates the inhalation of dust particles.
.... The dust particles act as irritants of the fine structures
^vhi(•h line the air passages and vessels, inducing chronic changes,
which, in turn, are liable to lead to consumption": 3 Chambers'
Encyclopedia, 438.
"The bacillus of tuberculo-is finds, indeed, th.e most favorable
conditions for its existence in the squalor of congested slums,
in tlie fo\d atmosphere of dusty workshops, in close courts, al-
leys, etc.": 70 Fortnightlv Review. 308.
"A very large num1)er of the most efficient workmen employed
in quarries, metal works, cotton and wool manufactories, print
Jan. 1904.] People v. Lochner. 795
trades and many other occupations exposing them to bad air and
dust fall victims to this infection" : 194 Edinburgh Eeview, 444.
"Since statistics still show that the mortality from phthisis in
people who follow certain trades is much greater than in others,
there can be no doubt of the causal relationship between occu-
pation and pulmonary disease and of dust being the causa
causans. ... In 1866 it was demonstrated that .... two
kinds of occupation had long been recognized as hurtful, viz. :
1. Those that give rise to mechanical or chemical irritation of
the air passages by dust, grit or fluff being diffused through the
atmosphere; 2. Those in which the operatives are exposed to
abrupt changes of temperature" : The Lancet, vol. 165, p. 1345.
"Living in a close atmosphere and in a high temperature,
bakers are subject to lung diseases, more especially phthisis":
5 Eefcrence Handbook of Medical Science, 276.
173 "Tiiose engaged in carding of cotton and workers in flax,
hemp, tobacco and flour, and chaff-cutters suffer in the same
manner, but to a less degree than such as are compelled to
inhale more decidedly irritating particles": Fowler & Godlee's
Diseases of the Lungs, 272.
"Dusty occupations, as in the case of millers, bakers, knife-
grinders, stone-masons and the like, are fraught with special
dangers to vulnerable persons": 5 Allbutt's System of Medi-
cine, 229.
"The inlialation of impure air in occupations associated with
a very dusty atmosphere renders the lungs less capable of re-
sisting infection": Osier's Practice of Medicine, 269.
"Dusty occupations make people prone to disease. The statis-
tics of Berlin as to street-cleaners, cabmen, coal workers and
miners shows this" : 35 Journal Am. Med. Assn. 1028. "The
question as to what business had best be carried on by tuber-
culosis patients is treated of by Ambler Tlie butcher^;,
he thinks, generally possess an immunitv, at least tliat has been
his experience, but bakers are particula'rly susceptible": 37
Journal Am. Med. Assn., 1068.
"Other vegetable dusts of less potency, which are little less
injurious in results than mineral dusts, are flour and starch,
which seem to operate rather by obstruction than by irritation.
Bakers, confectioners and pastry cooks represent a body of trades-
men exhibiting hygienic conditions of a common character, the
principal of which are exposure to heat from the ovens, dust,
steam, variations of temperature, in too many instances un-
healthy bakehouses, fatiguing movements necessitated wliere
796 American State Reports^ Vol. 101. [New York,
kneading is done by hand, disagreeable emanations from ma-
terials used, prolonged hours of work, more or less night work,
and loss of rest. To these evils of thoir trade the working bakers
often add intemperance and irregular living. My own senses
also make me conscious of a disagreeable, sickly smell much
like that of heated bones, superadded to the steam and other
fumes. Tliere arc in brief, many incidents in the occupation
of baking which reduce vital energy, predispose ^'^^ to lung
affections and shorten life": xVrlige Diseases of Occupations,
255.
The occupations of rope-makers, carpet-makers, bakers, etc.,
''being essentially dust-producing processes, they one and all
induce among workers excessive suffering from pulmonary
affections. Although the mortality of these workers from
phtbisis and other lung diseases is considerably below that of
metal workers, nevertheless it is in every case inordinately
high, exceeding the mortality of agriculturists by proportions
varying from 77 to 120 per cent": Latham's Eegister General's
Keport, 148.
According to the data presented by Dr. C. Moeller in his
work on Hygiene of the Baker Industry (page 295) : "Of bak-
ers dying between the ages of 45 and 65, twenty-five per cent
died from chronic bronchitis or related diseases." lie points
out "the persistency of the flour dust and starchy particles in
tbe bronchial tubes, and even in tlie lungs" by quoting a medical
authority to the effect "that even two and a half weeks after
leaving the employment, starchy particles and other evidences
of flour dust had been found in the exjicctoration of bakers
examined."
According to the tables of comparative mortality in tlie
federal census of 1900, the number of deaths among bakers and
confectioners was three and two-tenths per cent greater than
the average of general industrial occupations. These tables
are somewhat favorable to bakers between the ages of 15 and
4 i, but are unfavorable to tliem between the ages 45 and over,
the average being as stilted above: See, also, 1 Parke's ^Manual
of Practical Hygiene, 133; G2 :Mcdical EcK'ord. 334; iMedical
Jvxaminer and Practitioner, Nov. 1!)02, tit. "Occupations";
]\redical Examiner and Practitioner, July, 1901, tit. "Occupa-
tion as Affecting the Death Pate."
The heaviest death rate in England falls to cabrlrivcrs, paint-
ers, printers, tailors and bakers: !Mulhall's Dictionary of Sta-
tistics. 195. Statistics relating to thirtv-nine trades in Eng-
Jan. 1904.] People v. Lochkee. 797
land and Wales show that more bakers have consumption than
the average of those engaged in other vocations, and the
*^* table of male mortality in Paris shows higher death rate
among bakers than in all but five out of twenty of the common
callings of life : Mulhall's Dictionary of Statistics, 688.
While the mortality among those who breathe air filled with
minute particles of flour is less than among those who work in
stone, metal or clay, still it seems to be demonstrated that it
is greater than in avocations generally. The dust-laden air
in a baker's or confectioner's establishment is more benign and
less liable to irritate than particles of stone or metal, hence,
while bakers are classified with potters, stone-masons, file-grind-
ers, etc., still they are regarded as less liable to pulmonary dis-
ease than other members of the class. The evidence while
not uniform leads to the conclusion that the occupation of a
baker or confectioner is unhealthy and tends to result in dis-
eases of the respiratory organs. As statutes are valid which
provide that women or children shall not be employed in any
manufacturing establishment more than a certain number of
hours in a single day, so I think an act is valid which provides
that in an onployment which the legislature deems, and which
is in fact, to some extent detrimental to health, no person,
regardless of age or sex, shall be permitted or required to labor
more than a certain number of hours per day or week. Sucli
legislation, under such circumstances, is a health law and is a
valid exercise of tlie police power.
I vote for affirmance.
Justices O'Brien and Bartlett Dissented, tlie fonner saying: "It
will be seen that this soction of the Penal Code does not specify the
acts or omissions which are made crimes, nor does it in any ap-
propriate terras define the crime at all, hut refers for thai purpose
to another law. When we turn to article 8 of the labor law, re-
ferred to above, we find that it contains six separate sections, com-
manding certain things and prohiidting certain thiiigs. The par-
ticular section which the indictment charges to have been violated
by the defendant is the first section of the article, or section 110,
and that reads as follows: *Xo employe shall be required or p(>r-
mitted to work in a biscuit, bread or cake bakery or confectionery
establishment more than sixty hours in any one week, or more than
ten hours in any one day, unless for the purpose of making a shorter
work day on the last day of the week; nor more hours in any one
week than will make an average of ten hours per day for tlie num-
ber of days during such week in which such employe shall work.'
798 American State Eepoets^ Vol. 101. [Xew York,
While this section of the labor law does forbid certain things, no
penalty whatever is attached to a violation, and, therefore, in order
to get a definition of the particular crime charged in the indictment
we must examine two general statutes upon different subjects; that
is to say, we must read the Penal Code for the penalty or the pun-
ishment, and we must read the labor law in order to ascertain the
particular act or omission which constitutes the crime.
"One of the grounds of the demurrer is that the indictment charges
two crimes. It will be seen that two things or two acts or omis-
sions have been forbidden by the statute; it forbids the master from
either permitting or requiring the servant to work more than the
time specified in the statute. Assuming for the present that the
statute is valid, it makes it a crime for the master to permit the
servant to work over the statutory time; and it also makes it a
crime for him to require or compel the servant to so work. The
two acts or omissions inhibited by the statute are essentially different
in nature and character. It is one thing to permit the servant to
work; it is quite another thing to compel or require it. Permitting
him to work more than the ten hours might be intentional or in-
voluntary. Compelling or requiring him to work would be a deliberate
act on the part of the master in violation of the statute. In the one
case the punishment might very well be nominal; in the other case
it would necessarily have to be substantial, and, hence, it would seem
that two acts or omissions so essentially different in nature and char-
acter and each constituting a crime in itself could not properly be
united in the same charge, and in this view the objection that more
than one crime is stated in the indictment is good.
"But the objection was also made tliat the acts or omissions stated
in the indictment do not constitute a crime, and this objection raises
the question as to the validity of the statute and is of much nioro
importance than the form or substance of the indictment. It will
be seen from an examination of the law that there is no jirohibilion
against the act of the servant himself in working longer than the
statutory time. He mav work as many hours as he likf^s during the
(lay and he violates no law and commits no offense whatever. So
the broad question is v/lieiher a statute which makes it a crime for
tlie mnster to permit his sf^rvant to do what the servant has a per-
fect righ.t to do can be a valid law. No restrictions are imposed upon
the servant with respect to the hours of labor or otiierwise. As al-
readv remarked he has a perfect right to work as many hours in a
dav or week as iie may want to, but the master must see to it, at
the peril of committing a crime, that his servants are driven out
of the building the moment the clock registers the requisite ten
hours, and that, too, without regard to the conditions and circum-
stances affecting the business or the interests of the master. It is
a crime for the master to require or permit his servant to work ovor
the statutory time, no matter how willing or even desirous the ser-
Jan. 1904.] People v. Lociinee. ?99
vant may be to earn extra compensation for overwork. The master
is forbidden to contract with his servant for longer hours and extra
pay, no matter what may be the wants or necessities of the business,
or the judgment or will of the servant with respect to such a contract.
It is obviously one of those paternal laws, enacted doubtless with
the best intentions, but which in its operation must inevitably put
enmity and strife between master and servant. They are not left
free to make their own bargains in their own way, but their mutual
interests are governed by statute.
"^The sweei^ing character of the legislation in question may be
illustrated by a reference to the last section of the article of the
labor law referred to in the indictment; that is to say, to section
115. It is there enacted as follows: 'If, in the opinion of the factory
inspector, alterations are required in or upon premises occupied and
used as bakeries, in order to comply with the provisions of this ar-
ticle, a written notice shall be served by him upon the owner, agent
or lessee of such premises, either personally or by mail, requiring
such alterations to be made within sixty days after such service, and
such alterations shall be made accordingly.' There is no penalty for
a failure to observe this law in the law itself, but when we look into
the amendments of the Penal Code w^e find that the owner of a valu-
able building used as a bakery may be at the mercy of the factory
inspector, since, if it happens that the rooms are less than eight feet
in height, he must tear it down and rebuild it, if the factory in-
spector so requires it, or be subject to a criminal prosecution, fine
and imprisonment down to the third offense, and possilily so long as
the orders of the inspector are not carried out. It is quite incon-
ceivable that the legislature understood, when enacting the amend-
ments to the code by reference to another law, that its action would
have such a sweeping effect or confer such arbitrary powers upon a
ministerial officer that affected the liberty and the property of the
individual.
"It is contended in behalf of the defendant that the law under
which he was convicted violates section 1 of article 14 of the con-
stitution of the United States, which prohibits any state from mak-
ing or enforcing any law which shall deny to any person within its
jurisdiction the equal protection of the law, and those provisions of
the constitution of this state which enact that no meniljor of tliis
state shall be disfranchised or deprived of any of the rights or
privileges, secured to anj^ citizen thereof, unless by the law of the
land and the judgment of his peers, nor be deprived of life, liberty
or property without due process of law: Const., art. 1, sees. 1, 6.
The words 'law of the land' do not mean an act of the legislature
passed for the very purpose of working the wrong. The meaning is
that no person shall be deprived of any of the rights or privileges
secured to him by the constitution, unless the matter shall be ad-
judged against him upon a trial had according to law. It cannot be
800 American State Reports^ Vol, 101. [Now York,
done by mere legislation: Taylor v. Porter, 4 Hill. 140, 40 Am. Dec.
274; White v. White, 5 Barb. 474; People v. Toynbee, 20 Barb. tSS;
Wynehamer v. Peojile, 13 N. Y, 378; People ex rel. Warrcu v. Beck,
144 N, Y. 237, 39 N. E. 80; People ex rel. Eodgers v. Coler, 166 N.
Y. 1, 82 Am. St. Rep. 605, 59 N. E. 716, 52 L. R. A. 814; People v.
Orange County Road Const. Co., 175 N. Y. 84, 67 N. E. 129. The
doctrine of these cases condemns the legislation in question as an
invasion of the rights, liberties and property of the citizen. The
three cases last cited grew out of the same law that is violated in the
case at bar, or similar laws, and they cannot be distinguished from
it in principle.
"The labor law excludes from its regulations and restrir'tions all
persons engaged in farm work or domestic service (article 1, sec-
tion o) and, hence, a very large proportion of the people of the state
who labor for a living are not affected by it at all. Why this large
class of wage-earners who toil for a livelihood are excluded from the
benefits of the statute, and those who employ them exempt from its
burdens and restrictions, it is difficult to conceive. The farmers and
that large class of people both in the city and in the country who
employ domestics may require them to work any number of hours
without violating any law. They commit no crime by requiring their
servants to work from daylight till after dark or even into tlie iiiLr'^i.
The section of the law upon which the conviction in this case is
based is aimed at a very small class of persons, namely, those who
conduct 'a biscuit, bread or cake bakery or confectionery establish-
ment.' Work of the same general character is exacted from cooks
and domestic servants in practically all the private houses in the land
and to a great extent in hotels, restaurants and other public places.
It would be absurd to say that all, or even the greater part of the
biscuit, bread, cake and confectionery consumed in this state comes
from what are called bakeries. The law does not even apply to
bakers in the small towns and \ill:ii;os wlio iio tlicir own wurk-. It
applies only to bakers who find it neressary to employ labor, and
they alone are subjected to criniimil prosecution in case they p'Tinit
the servant to work more than ten hours a day, even though the
ser\-ant is willing and is given extra compensation. The baker is
ffirl.idden, under the ]icnalty of fine and imprisonment, to contract
or agree with his servant upon the hours of labor in such way ;is
would Ijc iiiutually beneficial, but his business is practically regulatcil
by statute. If for any reason he suffers or permits his servant to
work an aiMilioiia] linlf-k.our beyond the statutory time his liberty
and his property are put at the mercy of the servant, who may pro-
cure him to be arrcst'jd and imprisoned. It does not apj)ear from the
record in this case, or in any other way, that there is anything in
the business or vocation of a baker that would authorize the legis-
lature to in!;»ose such criminal penalties upon him for permitting his
servant to work more than ten hours in tlic day, or to restrict his
Jan, 1904.] People v. Lochner. 801
freedom of contract, -which is a right enjoyed by all other employ-
ers of labor. The guaranties of the constitution may be invaded
without any physical interference with the person or property of the
citizen. He is deprived of his property within the meaning of the
constitution when arbitrary and unnecessary restrictions are imposed
upon his conduct of any lawful business, and when he is deprived of
the right to make contracts for the transaction thereof. Liberty, in
its broad sense, means the right, not only of freedom from actual
restraint of the person, but the right of such use of his faculties in
all lawful ways, to live and work where he will, to earn his livelihood
in any lawful calling, and to pursue any lawful trade or avocation.
All laws, therefore, which impair or trammel those rights or restrict
his freedom of action, or his choice of methods in the transaction of
his lawful business, are infringements upon his fundamental right of
Uberty, and are void: Matter of Jacobs, 98 N. Y. 98, 50 Am. Eep.
636, They cannot, and should not, escape the scrutiny of the courts
merely because they are made to assume, by argument or otherwise,
the guise of police regulations.
"The statute in question deprives the defendant of the equal pro-
tection of the law, since it enacts that certain acts or omissions on his
part concerning the conduct of his business and his relations to his
own servants are crimes and punished criminally, wliich, as to all
the rest of the community not within the terms of this law, are en-
tirely innocent. The very small fraction of the community who hap-
pens to conduct bakeries, or confectionery establishments, are pro-
hibited, under pain of fine and imprisonment, from regulating the
conduct of their own business by contracts or mutual agreements with
their employes, whereas all the rest of the community who find it
necessary to employ labor in private business may do so. Class leg-
islation of this character which discriminates in favor of one person
and against another is forbidden by the constitution of the United
States, if not by the constitution of the state; and so it has been
held by the supreme court of the United States and by iliis court:
Gulf etc. Ey. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. Rep. 255, 41 L.
ed. 666; Cotting v. Kansas City S. Y. Co., 183 U. S. 79, 22 Sup. Ct.
Rep. 36, 46 L. ed. 92; Connolly v. United States P. Co., 1S4 U. S.
540, 22 Sup. Ct. Rep. 431, 46 L. ed. 679; People v. Orange County
Road Const. Co., 175 X. Y. 87. 90, 67 X. E. 129. It is, I think, quite
obvious that the legislation in question is, upon its face, in conflict
with the constitutional guaranties referred to, unless it can be brought
within the scope of the police power. That is the only ground upon
which the statute is defended by the learned district attorney. lie
contends that it is a health law passed for the purpose of protecting
the public health, or at least the health of those persons employed in
bakeries. The- argument is that the defendant was forbidden by
the statute to permit his workmen to work more than ten hours in
a day, to the end that his customers might have wholesome bread.
Am. St. Kep., Vol. 101—51
802 American State Reports, Vol. 101. [Xew York,
biscuit and confectionery, whereas if they were permitted to work
ten and a half hours in the day the product of the bakery would be
unwholesome or dangerous to health. What possible relation or con-
nection the number of hours that the workmen are permitted to work
in the bakery has, or can have, to the healthful quality of the
bread made there is quite impossible to conceive. The baker in the
small towns, or even in the large towns, who does his own work and
does not employ labor, may work day or night without fear of molesta-
tion, since no one thought it necessary to protect the public against
his unwholesome product. It has already been observed that the
law does not impose any penalties or restrictions upon the workman
himself for working too much, and if the purpose was to protect his
health against his own avarice, or his own misdirected energy, it is
quite remarkable that it did not at least forbid him from working
more than ten hours in a day.
"The contention that the defendant was convicted for violating a
health law is, at best, I think, but a mere disguise that is not suffi-
cient to save the statute from condemnation. There is nothing on
the face of the law nor in its manifest operation to show that it has
any relation to the public health. It is no part of the health law
but a part of a general statute known as the labor law. The exe-
cution of it was not intrusted to any of the health authorities, but
to the factory inspector, which shows what its real scope and purpose
was. The factory inspector is not the officer charged with the enforce-
ment of health laws. The legislature classified it as a labor law,
and it is that and nothing else. Laws which encroach upon the
personal or property rights of the citizen, as guaranteed by the con-
stitution, are generally defended upon the ground that they are police
regulations; but the courts have prescribed a test by means of which
their true character and purpose may be known. The rule is that the
court must be able to say judicially that the statute in question is
a health law, and has some appropriate relation to the promotion or
protection of health. It will not be deceived or misled by mere names
or pretenses. The cases are numerous in which the courts have con-
demned statutes as invasions of the rights secured to the citizen by
the constitution, though enacted or sought to be upheld under the
guise of health laws or other police regulations. They all arrive at
the same result, and that is that the legislature may not under the
guise of a statute to protect against some wrong, real or imaginary,
arbitrarily strike down private rights and invade personal freedom or
confiscate private property. The police power must be exorcised
within its appropriate sphere and by appropriate methods: Matter of
Jacobs, OS X. Y. 98. 50 Am. Rep. 636; People v. Marx, 99 N. Y. 377,
52 Am. Rep. 34, 2 X. E. 29; People v. Arensberg, 103 X. Y, 388, 57
Am. Rep. 741, S X. ]•:. 736; People v. Gillson, 109 X. Y. 389, 4 Am. St.
Rep. 465, 17 X. E. 343; Colon v. Lisk, 153 X, Y. 188, 60 Am. St. Rep.
609, 47 N. E. 302; People v. Coler, 166 X. Y. 1, 82 Am. St. Rej^ 605,
Jan. 1904.] People v. Lochner. 803
59 N. E. 716, 52 L. E. A. 814; People v. Buffalo Fish Co., 164 N. Y.
101, 104, 79 Am, St. Kep. 622, 58 N. E. 34, 52 L. K. A. 803; People
V. Hawkins, 157 N. Y. 1, 68 Am. St. Kep. 736, 51 N. E. 257, 42 L. R. A.
490. It will not do to say that the legislature in enacting the stat-
ute in question may have thought that it was a health law, or had
some relation to health. The action of the legislature, or its views
or reasons for the passage of the law, does not conclude the courts,
but they must determine for themselves whether in any given case
the legislation which is claimed to be an exercise of the police power
is really what it is claimed to be. Every labor law, however stringent
and arbitrary, could just as well be upheld upon the ground that it
is a health law; but in all the discussions that have been had in the
courts for many years concerning the validity of legislatiun of this
character, there are to be found but very few cases where it was
even claimed that the statute was enacted for the purpose of pre-
serving or promoting health, or that it had any relation whatever
to that subject. When it is manifest, as it is in this case, that the
law has no relation whatever to the subject of health, and that its
real object and purpose was to regulate the hours of labor between
master and servant in a business which is private and not dangerous
to morals, or to health, freedom to contract with each other, defining
their mutual obligations, cannot be prohibited without violating the
fundamental law.
"The defendant was charged in the indictment with the violation
of a single independent section of article 8 of the labor law, namely,
the first section, which relates solely to the hours within which the
master may permit the servant to work. The validity of that sec-
tion is not affected or helped out by the character of some of the
other sections of the article, since part of a statute may be perfectly
valid and another part in conflict with the constitution. It is quite
possible that some parts of the other five sections can be regarded
as prescribing sanitary regulations, such as ventilation, plumbing,
fire-escapes and the like, but such regulations cannot save the first
section which deals exclusively with the time within which the ser-
vant is to work and virtually makes a contract to be observed by
the master alone, leaving the servant just as free as if the law had
never been passed. A section, or sections, of a statute may be good
that requires and prescribes sanitary regulations binding upon the
landlord who owns and lets tenement houses in cities, but this would
not save another section of the statute that prescribes the max-
imum rent that he may demand and receive from his tenants. It ia
even quite possible that a law might be held good that enjoins upou
farmers or persons employing domestic help the duty of preserving
their health against infectious diseases by reasonable and proper
safeguards, such as ventilation of the rooms where they sleep and
the like, but this would not save a separate section of the law pre-
scribing the compensation that the master is required to pay to the
804 American State Reports, Vol, 101. [New York,
servant. So that the section of the labor law with which we are
now concerned can borrow no strength from its association with other
sections of the statute that may be sfood. The single section of the
labor law that we are now dealing with must stand or fall upon its
own intrinsic character and can receive no support from the com-
pany in which it is found. If that section had also provided that
every employ^ of a baker would be guilty of a misdemeanor if he
neglected or refused to faithfully serve his master for ten full hours
in each day no one I apprehend would then claim that it was a health
law. And yet every argument and every authority cited in defense
of the section in its present form would be just as good then as they
are now. The section would then be just as much of a health law as
it is now.
"It cannot be repeated too often that if the single section of the
law with which we are now concerned and which is the sole basis of
the criminal charge in this case, stood alone, the argument that it
is a health law and within the police power would not have even a
color of reason or authority to support it. But what the learned dis-
trict attorney urges upon us is that since the section is found in the
article associated with other sections prescribing sanitary regula-
tions, we must assume that the legislators, for some unexpressed rea-
son sufficient to them, reached the conclusion that a baker ought not
to be permitted or required to work on an average of more than ten
hours in a day. Of course this reasoning is without force and docs
not meet the difficulty. The question is not what the unexpressed
reason is that moved the lawmakers, so long as it is impossible for
any court to discover that reason or any reason to bring the enact-
ment within the scope of the police power. It is always open to
the courts to inquire and determine whether a statute is in fact
fairly within the police power. That principle is founded imbedded
in all the cases on that subject. If it were otherwise and the real
view of the legislature is made the dominant idea, then the court
would be deprived of all power to declare any law void provided
the legislature called it an exercise of the police power, or some one
contended that it was supposed to be such upon some theory that
the public interest required its enactment. There would be no limit
then to the police power, and every statute, however arbitrary and
in violation of the constitutional safeguards for the protection of
life, liberty or property, could be upheld on the plea that the law-
makers called it a health law or intended it as such, or thought it was
necessary for that purpose. It is incumbent upon the courts to see
to it that such laws are really what they profess to be, or if claimed
to be police regulations, that they are such within the reasonable
scope of that power.
"The bakers' vocation is one that has existed practically in all
ages and in all countries. "NVlierever cereals are converted into bread,
the standard food of the human race, except possibly as to those races
Jan. 1904.] People v. Lochner. 805
that are considered savage or semi-savage, the making of bread is one
of the most common employments. The process is familiar to the
domestics in every public or private house in the laud as well as in
the places called bakeries, where bread is made for sale to the public.
It has never been supposed that it was a trade or vocation that was
or might be dangerous to health, morals or good order, or that there
was anything about it to justify legislation restricting the right of
the master and servant to make their own contracts, express or im-
plied, with respect to hours of work or the terms of employment.
There is nothing in the record before us from which it can be inferred
that there was any ground for the passage of the statute as a police
regulation for the protection of health, morals or good order, and,
heuce, it cannot be upheld as an exercise of the police power. It
is a plain discrimination against a limited class of people who hap-
pen to be obliged to employ labor in the manufacture of bread, bis-
cuit or confectionery in those places called bakeries. This relatively
small class are restricted by the statute to the regulations there pre-
iseribed with respect to the hours of labor by their employes, and
are prohibited from agreeing with them as to the time they are to
Tv-ork even though extra pay should be given for overwork, a right
which the law gives to all other persons employing labor. If the
legislature can do all this, then the right to enact what wages the
servant shall receive per day or per hour must necessarily follow as an
inevitable conclusion. A statute fixing the wages of the servant at
such a sum as to enable him to live more comfortably could be de-
fended as a health law by the same argument and authority adduced
in support of the section of the present law, the violation of which is
the only crime charged.
"It is doubtless within the power of the legislature to enact that a
ton of coal or a bushel of wheat shall contain a certain number of
pounds; but it cannot prohibit parties from entering into contracts
to the effect that a ton of coal or a bushel of wheat shall contain more
or less than the quantity prescribed by statute. When there is no
contract regulating the matter, and there is a dispute between the
parties as to what constitutes a ton of coal or a bushel of wheat, the
statute would doubtless be available to settle the controversy. So in
the case of the master and servant with respect to the number of
hours that shall constitute a day's work. The legislature may no
doubt define what is or shall constitute a day's work, but it cannot
prohibit the parties from making agreements for themselves, and
then custom or contract, express or implied, would control the mutual
obligations of the parties.
"The facts stated in the indictment do not constitute a crime,
and, therefore, the demurrer must be sustained, the judgment of
conviction reversed and the defendant discharged."
806 American State Reports^ Vol, 101. [New York,
At to the Constitutionality of statutes limiting the number of hours
which, shall constitute a day's work, see State v. Atkin, 64 Kan. 174,
97 Am. St. Kep, 343, 67 Pac, 519; Cleveland v. Clements Bros. Con-
struction Co., 67 Ohio St. 197, 93 Am. St. Eep. 670, 65 N. E. 885, 59
L. K. A. 775; Seattle v. Smyth, 22 Wash. 327, 79 Am. St. Eep. 939, 60
Pac, 1120; State v. Buchanan, 29 Wash. 602, 92 Am, St. Eep. 930, 70
Pac. 52, 59 L. E. A. 342; In re Morgan, 26 Colo. 415, 77 Am. St. Eep.
269, 58 Pac. 1071, 47 L. E. A. 52; note to Booth v. People, 78 Am.
St. Eep. 244, 245. And as to the validity of other statutes limiting
the right of contract between employer and employ^, see Street v.
Varney Elec. Supply Co., 160 Ind. 338, 98 Am. St. Eep. 325, 66 N. E.
895; International Toxt-l^ook Co. v. Weissinger, 160 Ind, 349, 98 Am.
St. Eep. 334, 65 N. E. 521,
BLINN V. SCHWAEZ,
[177 N. Y. 252, 69 N. E. 542.]
CONTRACTS, Ratification of. — A void contract is binding upon
neither party, and cannot be ratified. If ratified in form, it is a new
contract, and takes effect only from the date of the attempted ratifica-
tion, (p. 809.)
CONTRACTS. — A Voidable Contract Binds One Party but net
the Other, who may ratify or rescind it at pleasure, (p. 809.)
CONTRACTS of Insane Persons. — Idiots and persons of non-
sane memory are not totally disabled either to convey or purchase, but
sub modo only, for their conveyances and purchases are voidable.
but not actually void. (p. 811.)
INSANE PERSONS. — The Deed of a Lunatic Before Office
Found is voidable only, and not void. (p. 811.)
INSANE PERSONS. — The Deed of an Insane Person may be
Ratified by Him if it was made while he was insane, and his aj^jent,
Tinder a power of attorney, also executed <lurinjT the insanity, received
the consi<leration, and the principal, after becoming sane, sued su*"!!
agent for an accounting and inserted allegations in the complaint
which would have permitted a recovery of the money received by the
agent for the conveyance. Though it does not appear by the com-
plaint or otherwise that the principal knew when the action was
brought that his agent had received such moneys, still this casts the
burden of proof on such principal in an action of ejectment to re-
cover the land so conveyed, and requires him to show that he did not
ratifv the conveyance after the termination of his insanity, (pp. 812,
813.)"
Action of ojoctinont. Tlie dofonflant plearled that she was
in po-sp-^sion of Ihe properly under a conveyance execiit<:'d to
lier by the phiintifT ^Nfarch 31. 1890, in consideration of seventy-
eiiiht thonsnnd d'dlars paid })y her. out of which the sum of
forty-five thousand dollars was applied to discharire liens on
the property. The plaintiff, in reply, allejied that he had no
re<;o]lection of havinf^ executed the deed; denied that he liad
Jan. 1904.] Blinn v. Schwarz. 807
received the consideration therefor, and averred that at the
date of its execution he was insane and that defendant took
advantage of his condition by procuring his signature to a paper
purporting to be a conveyance of the premises described in the
complaint.
When the plaintiff purchased the property in 1887, he exe-
cuted to his grantor six promissory notes to secure sixty-five
thousand dollars. There was at the trial evidence tending to
prove that the plaintiff was insane from the commencement
in the year 1890 until some time in the year 1895, but noth-
ing to show that he had ever been adjudged insane. The deed
under which the defendant claimed was executed by the plain-
tiff and his wife, but the consideration for its execution was
paid to Henry Ungrich, who acted imder two powers of attor-
ney from the plaintiff, one dated April 16, 1890, and the other
in February of the same year. Each power was sufficient in
form to authorize Ungrich to sell and convey real property and
receive the purchase price thereof.
The present action was commenced in October, 1897. At
the trial evidence was offered and received on behalf of the
defendant showing that the plaintiff, in July, 1897, commenced
a suit against Ungrich alleging his appointment as agent and
trustee of the plaintiff; that as such he had entered upon pos-
session of plaintiff's property, real and personal, and sold part
if not all of it, receiving the consideration and retaining tlie
same for his use and benefit, and refused to account to the
plaintiff'; and the ])laintiff prayed that his agent be directed to
make a discovery and accounting of all his transactions as such
agent and trustee.
The trial court directed a verdict in favor of tlio defendant
to which the plaintiff excepted, asking to have the question of
his insanity at the time of the execution of the deed submitted
to the jury. The court ordered the exceptions to be heard by
the appellate division. It ov(>r ruled them, and ordered judg-
ment to be entered against the plaintiff on the verdict.
Gi'orge Xewell Hamlin, George B. Lester and Harmon S.
Graves, for tlie appellant.
Edward W. S. Johnston and Edward P. Orrell, for the re-
spondents.
2*^*'' YAXX, J. The deed in question and botli powers of
attorney were executed by the plaintiff when he was of unsound
808
American State Eeports, Vol. 101. [New York,
mind and incapable of attending to his affairs, as tlie jury
258 might ]iave found. About two years and a half after he
recovered his mind he sued liis agent and trustee for a general
accounting, and the allegations of his complaint would have
permitted the recovery, among otlier moneys, of the sum of sev-
enty-seven thousand seven hundred and fifty dollars paid by
th.e defendant Julia Schwarz upon the purchase of the property
in question. The plaintiff did not allege in his complaint in
that action that his agent had received that sum, or any specific
money, and it does not expressly appear that he knew when he
brought the action what sums had been paid, or under what
circumstances, or for what property. After tliat complaint
had been put in evidence by tlie defendants, however, the bur-
den was upon the plaintiff of explaining the same, or of show-
ing what he could in answer thereto, but the record contains
nothing upon the subject. As he had never been adjudged a
lan-atic, he could not proceed on the assumption that he was in-
sane, as he alleged, for that was a question for the jury. The
lapse of time between his recovery and his act has an important
bearing upon what he is presumed to have known. While nei-
ther power of attorney specifically covered the receipt of money
jiaid in consideration of j;roperty conveyed by the plaintiff in
I'crson, still the general jowers were broad enough to authorize
the agent and trustee to collect tlie same.
Although the plaintiff, in the action now before us, excepted
to the direction of a verdict in favor of the defendants, he did
not rest there but asked to have tlie question of his insanity at
tl;e time of the nuiking of the deed to Mrs. Schwarz submitted
to the jury, lie did not ask to go to the jury on the whole
case, or upon any otl;er question, and by requesting that the
question of insanity only should be subniitteil. he waived tlu
right to have tlie (jucstion of ratification, so far as it was one
of fact, sent to the jury. The evidence warrants the conclu-
sion that the plaintilf ratified the act of liis agent as well as
his own with reference to the deed under consideration, ])ro-
vided the deed and the powers of attorney were not absolutely
void, liut merely voidable. As we must assume that tlic plain-
tiff was insane when he executed those instruments we ^^'* thus
reach the principal question presented by the record, as to
whether the contract of a person actually insane, l)ut never so
adjudged, is void, or n;erely voidable, at his election.
I'sing the term in its exact sense and limiting it to the par-
ties themselves, a void contract is binuing ujwn neither and
Jan. 1904.] Blinn v. Sciiwarz. 809
cannot be ratified. Even if ratified in form by both, it would
Le a new contract and would take effect only from the date of
the attempt at ratification. A voidable contract, on the other
hand, binds one party but not the other, who may ratify or re-
scind at pleasure. The word 'S'oid,^^ however, is used both in
statutes and in decisions of the courts, with several meanings
and seldom with the exact one. This is illustrated by an opin-
ion of the court of errors, from which we extract the follow-
ing: "A thing is void which is done against law, at the very
time of doing it, and where no person is bound by the act;
but a thing is voidable which is done by a person who ougbt
not to have done it, but who, nevertheless, cannot avoid it him-
self, after it is done. Bacon classes under the head of acts
which are absolutely void, to all purposes, the bond of a feme
covert, an infant, and a person non compos mentis, after
an office found and bonds given for the performance of il-
legal acts. He considers a fraudulent gift void, as to some
persons only, and says it is good as to thic donor, and void as to
creditors. Whenever the act done takes effect as to some pur-
poses, and is void as to persons who have an interest in impeach-
ing it, tlie act is not a nullity, and, tlierofore, in a legal sense,
is not utterly void but merely voidable. Another test of a void
act or deed is tbat every stranger may take advantage of it, but
rot of a voidible one: 2 Leo. 218; Viner, tit. 'Void and Void-
able,' A. pi. 11. Again, a thing may be void in several de-
grees: 1. Void, so as if never done, to all purposes, so as all
persons may take advantage thereof; 2. Void to some purposes
only; 3. So void by operation of law, tbat he who will have
the benefit of it, may make it good"': Anderson v. Eoberts, 18
Johns. 516, 527, 9 Am. Dec. 235.
Contracts to defraud creditors, those made under duress or
while one of the parties was intoxicated and the like are not
-'^* void l)ut voidalile at the option of the injured party, while
contracts to do acts forbidden by law, such as the commission
of crimes, or not to do acts required by law, such as refusing
io obey a subjjoena, are utterly void. So arc contracts of in-
sane persons, '''made after an inquisition and conflrnmtion
thereof, but not when made before office found, even if within
the period overreached by the finding of tlie jury, although
they are presumed to be so until capacity to contract is sliown
by satisfactory evidence": Hughes v. Jones. ]1G N. Y. G7, 73,
15 Am. St. Eep. 386, 22 N. E. 446, 5 L. E. A. 637.
810 American State Reports, Vol. 101. [New York,
In Van Deusen v. Sweet, 51 X. Y. 378, relied on by the
plaintiff, the headnote is misleading, for the learned judge writ-
ing the opinion used the word "void" with a flexible meaning,
as on page 384 he says that the deed then in question "was not
merely voidable, but absolutely void," and in the third sen-
tence following that "it would, have been competent for the
plaintiff to have shown that the deed was voidable, if that had
been necessary to defeat the defendant's claim : See Phillips v.
Gorham, 17 N. Y. 270; Lattin v. McCarty, 41 N. Y. 107."
It is evident from reading the entire opinion that the court
had in mind the remedy of the plaintiff at law when it used
the foriiier expression, and the rights of the parties in equity
when it used the latter. This case has produced some confu-
sion, becau,-e, owing to the syllabus, it has been nusunderstood.
In Goodyear v. Adams, 119 N. Y. 650, 23 N". E. 1149, 5 K
Y. Supp. 275, also relied on by the plaintiff, it was held that
a deed executed by an insane person is absolutely void at law,
but if taken in good faith and for a valuable consideration may
be upheld in equity.
The question before us is not whether tlie deed is void at
law, but whether it is void in the extreme sense of tlie word,
not only at law but in equity, so that there was nothing for
ratification to act upon. One of the defenses pleaded by the
defendant hJcliwarz is of an equitable nature, as she alleged the
payment of a consideration of seventy-eight thousand dollars
and tliat fifty-four thousand dollars of that amount was applied
upon tlic mortgages on the property whicli were satisfied of
record.
^^^ I tliink tlie true rule was suggested by the great English
commentator, wlien he said that "Idiots and persons of nonsan-?
n;emory, infants and persons under duress, are not totally dis-
abled eitlier to convey or purchase, ))ut sub luodo only, for tlieir
conveyances and purclinses are voidable but not actually void":
2 Black's Commentaries, 201.
Chancellor Kent uses similar language (2 Kent's Commen-
taries, 451) ; and other writers lay down substantially the same
rule. ^Ir. Wharton, aftor a full discussion of the subject, says
that "t' e true rule is that a voidnble deed is capable of ratifi-
cation, and if a g^rantor, when insane, inakcs a deed, and
should afterward in a lucid interval, well understanding the
nature of t^-e instrument, ratify and adopt it as his deed, a« by
receivini: tl;e jmrd'ase ii onoy d- e nndcr it. ibis would give
effect to it and render it valid in the hands of the grantee."
Jan. 1904.] Blinn v. Schwarz. 811
The learned author cites many authorities in support of this
position: 1 Wharton's Law of Contracts, sec. 107, p. 138.
In Bishop on Contracts (sections 873 and 874) it is said:
"Plainly, in justice, the same party ought ordinarily to bo
holden, whether he knew of the insanity or not, if the other
or his representative so elects. The authorities on this point
may be conflicting, but such is believed to be the better doc-
trine. This last would make the contract voidable, whatever
the courts should hold its other consequences to be In
general, this contract, like an infant's, may be ratified or dis-
affirmed by the insane party's guardian or committee, or by
himself during a lucid interval or on becoming sane, or after
his death by his proj^er legal representative."
In Clark on Contracts, page 268, it is laid down "as a gen-
eral or almost universal rule" that the contracts of an infant
or insane person "are not void, but simply voidable at his op-
tion and they are binding on the other party if he elects to
hold him."
In Lawson on Contracts (section 161), the rule is stated iu
this language: "The contract of an insane person is voidable at
his option, and, therefore, one may prove in avoidance of his con-
tract that he was non compos mentis when he entered into
^*®^ it, altliough a similar privilege is not allowed to the party
with whom he contracted. The insanity to avoid the contract
must be an absolute incapacity to understand the elTcct of the
act, and, therefore, mere weakness of mind, or partial insanity
or monomania, unconnected with the subject matter of the con-
tract, is not sufficient, though a moderate degree of incapacity
may be sufficient where the transaction is accompanied with
fraud, imposition or duress. AVhcre the person has been ad-
judged a lunatic and placed under guardianship, contracts
made by him thereafter are absolutely void, unless the guar-
dianship has been abandoned, or no guardian has been ap-
pointed, or the guardian appointed has resigned."
We will close our quotations with the following from Pol-
lock's Principles of Contract, page 81 : "The contract of a lu-
natic or drunken man who by reason of lunacy or drunkenness
is not capable of understanding its terms or forming a rational
judgment of its elToct on his interests is not void, but only void-
able at his option; and this only if his state is known to the
other party": See, also, Shelford on Lunacy, 419; Story's
Equity Jurisprudence, 228, 28 Am. & Eng. Ency. of Law, 1st
812 Ameuican State Eepokts^ Vol. 101. [New York,
ed., 478; 9 Am. & Eng. Eijcy. of Law, 2d ed., 119; Addison on
Contract;,, Gth ed., 1033; Smith on Contracts, 5th ed., 343, 344.
Althougli the decisions of the courts upon tlie subject are
not uniform according to the weight of authority in this state,
as well as elsewhere, the deed of a lunatic before office found is
voidable only and not void: Hughes v. Jones, 116 N. Y. 67, 73,
15 Am. St. llep. 386, 22 N. E. 446, 5 L. E. A. 637; Valentine
V. Lunt, 115 N. Y. 496, 22 N. E. 209; Mutual Life Ins. Co.
V. Hunt, 79 N. Y. 541, 545 ; Ingraham v. Baldwin, 9 N. Y^ 45,
47; Jackson v. Gumaer, 2 Cow. 552, 568; Fitzhugh v. Wilcox,
12 Barb. 235, 237; Canfield v. Fairbanks, 63 Barb. 461, 465;
Matter of Beckwith, 3 Hun, 443; Eiley v. Albany Sav. Bank,
36 Hun, 513, 519, 103 N. Y. 669; Brown v. Miles, 61 Hun,
453, 456; Baldwin v. Golde, 88 Hun, 115, 34 K. Y. Supp.
587; Wagner v. Harriott, 10 N. Y. St. Rep. 709; Merritt v.
Merritt, 43 App. Div. 68, 70, 59 N. Y^ Supp. 357; Loomis v.
Spencer, 2 Paige, 153; L'Amoreux v. Crosby, 2 Paige, 427, 22
Am. Dec. 655; Allis v. Billings, 6 Met. 415, 39 Am. Dec. 744;
Lancaster Co. Nat. Bk. v. Moure, 78 -^ Pa. St. 407, 21 Am,
Pep. ;^4 ; Long v. Long, 9 Md. 348 ; Mattliiessen & Weichers Re-
fining Co. V. .McMalion, 38 N. J. L. 536; Wilder v. Weakley,
34 Ind. 181; Bclirens v. ]\IeKcnzie, 23 Iowa, 333, 92 Am. Lee.
428; ]\Iolton v. Caniroux, 2 Ex. 487; 4 Ex. 17; Beavan v.
M'Donnell, 9 Ex. 309.
We think the rule laid down by these cases is sound and in
the interest of those alHictcd with disease of the mind. The
deed of a lunatic is not void, in the sense of being a nullity,
but has force and effect until the oj)tion to declare it void is
exercised. The right of election implies the right to ratify,
and it may be greatly to the advantage of the insane person to
have that right. If the deed or contract is void, it binds neither
party, and neither can derive any benefit therefrom, but if void-
able, the lunatic, upon recovering his reason, can liold on to
the bargain if it is good and let go if it is bad. This option
is valuable, for it gives him the ])Ower to do as he wishes, and
to bind or loo-c tlie other party at will. Upon the record be-
foie lis. therefore, even if the plaintilT was insane at the date
of the (bed, there was no error in directing a verdict for the
defcnilants.
The only exc<'piion, a-ide from those involved in the fore-
going discussion, was taken to the admission in evidence of
the complaint in the action brought by the plaintiff against
Jan. 1904.] Blinn v. Schwarz. 813
his agent, subject to tlie objection that it was immaterial.
That action was brought to recover the purchase price of the
very premises sought to be recovered in this. It was pending
when this action was commenced, and was pending at the time
of the trial. As was said in the prevailing opinion below, the
defendants had "the right to show any facts to establish that
at the time of the trial the deed was plaintiff's deed." The
plaintiff could not recover the land and money both, and he was
in the act of trying to recover the money when his action to
recover the land was brought as well as when it was tried. He
made no request to go to the jury as to his knowledge or want
of knowledge when the first action was commenced. Having
the right to sue for the money or the land, he sued for both,
and, upon the trial of the second action, it ^^^ was material
upon the question of ratification to show what he alleged in
his complaint in the first.
Without considering the question, so ably discussed in the
concurring opinion below, whether the plaintiff, in any event,
should have resorted to equity for relief, we think the record
shows no reversible error, and that the judgment should, there-
fore, be affirmed, with co?ts.
Parker, C. J., O'Brien, Bartlett, Martin, CuUen and Werner,
JJ., concur.
Judgment affirmed.
The Deed of an Insane Person is merely voidable and not void:
Cobnrn v. Eaymond, 76 Conn. 484, 100 Am. St. Eep. 1000, 57 Atl. 116;
French Lumbering Co. v. Theriault, 107 Wis. 627, 81 Am. St. Rep.
856, 83 N. W. 927, 51 L. R. A. 910; Wooley v. Gaines. 114 Ga. 122, SS
Am. St. Eep. 22, 39 S. E. 892; note to Flach v. Gottschalk Co., 71
Am. St. Eep. 430. It may be set aside after his restoration to sanitv:
Clay v. Hammond, 199 Til. 370, 93 Am. St. Eep. 146, 65 N. E. S'52;
Eldiredge v. Palmer, 185 111. 618, 76 Am. St. Rep. 59, 57 N. E. 770.
Or it may be affirmed: Note to Flach v. Gottschalk Co., 71 Am. St.
Eep. 432. But an insane grantor cannot affirm or disaffirm his deed
so long as he remains of nnsonnd mind: Downham v. Holloway, 158
Ind. 626, 92 Am. St. Rep. 330, 64 N. E. 82.
814 AMEmcAN State Keports^ Vol. 101. [New York,
MATTEE OF BAEEFIELD.
[177 N. Y. 387, 69 N. E. 732.]
PRACTICE in Surrogate Courts.— The Report of a Referee
appointed in pursuance of section 2546 of the New York code
is subject to confirmation, modification or rejection by the sur-
rogate. Such report is not self -executing, and it is both the right and
duty of the surrogate to act upon it even after ninety days after it
has been submitted to him. (p. 815.)
APPEAL AND ERROR.— The Reversal of a Decree of the
Appellate Division by an order which does not disclose that the
reversal is on a question of fact must be presumed to have been
upon a question of law. (p. 815.)
APPEAIi AND ERROR. — Where the Decision of the Trial
Court "does not separately state the facts found, and the order of
the appellate division does not state that the reversal is upon a ques-
tion of fact, it must be presumed that all the facts warranted by
the evidence and necessary to support the judgment were found by
the trial court, (p. 816.)
TRUST, When not Created "by a Deposit in Bank. — If A opens
an account in a lianlj in which he deposits his own money
in his name "in trust for B, " this does not necessarily create a
trust in favor of B, and , a court is justified in finding that no
trust was thereby created if there is evidence of declarations on the
part of B tending to show that he had no interest in the moneys
deposited, (p. 816.)
GIFT OF MONEYS on Deposit in Bank.— If the holder of a
bank-book delivers it to another with an order directing that the
amount due be paid to the latter, who afterward retains the posses-
sion of such book, this constitutes a gift of such amount, (pp. 817,
818.)
BANKING. — Notwithstanding the Deposit of Moneys Jointly
in the Names of A and B, they may be proved, by the testimony of
the latter, to belong to him exclusively, (p. 818.)
APPEAL AND ERROR.— Where a Surrogate Finds that moneys
deposited in the names of A and B belong to the latter only,
and the appellate division reverses upon the law, the court of
appeals can only inquire wliether there is evidence in the record sup-
porting the finding implied in the decision of the surrogate, and if
there is, the judgment of the appellate division should be reversed,
(p. 818.)
Benjamin F. Tracy and F. W. Catlin, for the appellant.
Eichard T. Greene, for the respondent.
390 pAEKEl?. C. J. The matter of the judicial settlement
of the account of Eebecca A. E. Barefield, as adnnnistratrix of
the estate of ^Marv E. Eosell, deceased, coniinn; on hefore the
surrogate of Kings county, he appointed a referee under section
2546 of the Code of Civil Procedure, to examine the account
and to hear and determine the questions arising upon its set-
Feb. 1904.] Matter of Baeefield. 815
tlement. The referee's report comprises the evidence taken ; cer-
tain formal findings of fact, as to which there was no dispute;
an enumeration and description of five bank accounts and the
dates at which they were closed by the administratrix; and his
conclusions of law which are practically a restatement of the
facts about these bank accounts in the form of schedules, as a
result of which he charges the accounting administratrix with
.the amount of the bank accounts.
On the motion to confirm the referee's report the surrogate
came to an entirely different conclusion as a result of his ex-
amination of the testimony. In his opinion he discusses fully
the law and the facts, disclosing the reasons that led him ^^^ to
the conclusion from the undisputed facts that the amount of
the bank accounts belonged to Mrs. Barefield individually, both
before and after deposit. The decree does not contain specific
findings of fact, but states the conclusions to which he had
arrived.
While some doubt has been expressed as to the effect of the
report of a referee appointed in pursuance of section 25-46, it
is now settled that the report is subject to confirmation, modifi-
cation or rejection by the surrogate. Indeed, we hold in Matter
of Clark, 168 N. Y. 427, 61 X. E. 769, that notwithstanding
the last clause — which provides that the report shall be deemed
confirmed unless acted upon by the surrogate within ninety
days after it has been submitted to him — the report is not self-
executing, and the surrogate has the right, and it is his duty,
to act upon it after the expiration of such period if he has
not done so before. The court says in that case (168 IST. Y.
4v'7, 433, 61 N. E. 769, 771) : "We think the section was not
intended to deprive the parties of their riglit to tlie judicial ac-
tion of the surrogate, but that its obvious purpose was to expe-
dite decisions in this class of referred cases and to provide a
means by which any interested party could enforce promptness
of action."
The referee's report, therefore, is not final. His conclusions
must be doomed to be reported to the surrogate in aid of Ins
decision and decree, which should be founded upon the law as
applied to the evidence taken before the referee. The dooroo
is the first binding adjudication, and from it only can an appeal
be taken.
This decree was reversed by the appellate division by an order
which does not disclose that the reversal is upon a question of
816 American State Reports, Vol. 101. [New York,
fact, and in such case it must be presumed that it is upon the
law: Matter of Keefe, 104 X. Y. 353, 58 N. E. 117.
We are thus brought to the question, whether the decree has
such support in the undisputed facts as entitles it to stand.
For where the decision of the trial court does not separately
state the facts found, and the order of the appellate division
does not state that the reversal is upon a question ^"^ of fact,
it must be presumed that all the facts warranted by the evi-
dence and necessary to support the judgment are found by the
trial court: People v. ^Vdirondack lly. Co., 100 N. Y. 225, 5i
N. E. 089; Gannon v. McGuire, 100 :N". Y. 470, 73 xVm. St.
Eep. 094, 55 ^'. E. 7.
We shall first take up the three deposits — in the Seaman's
Bank, the Greenwich Savings Bank and the Bowery Savings
Bank — in tlie name of "Rebecca A. 11. Barcfield in trust for
iAIary E. Rosell.^'
It is not neccssaiy to determine whetlier the evidence fur-
nished by such bank-books, standing alone, creates a valid and
ii revocable trust, for that is not tliis case. The uiicontradictcil
evidence is tliat tlie moneys deposited were Mrs. Baretleld's; that
sl.e opened the accounts personally, took the bank-books and
retained them until after the death of Mrs. Kosell. And Mrs.
Barefield in her testimony in various places distinctly claims
such accounts as her own. She testifies: "The account was
mine Absolutely my own account Tliey were
my private all'airs." The record contains no suggestion of any
change in t!ie accounts nor in lier intention. The surrogate was
justified, tlierefore, in reaching tlie conclusion to which lie gave
expression in his opinion that it was "'the positive testimony
.... that there was no intention to give this money to the
beneficiary."
A further circumstance bearing upon the question of whether
she intended to create a trust is to be found in tlie testimony
of ^Irs. BosclTs physician, who says: "1 liad repeated conversa-
tions with her about her property. She was very sick with
pneumonia. I told her if she had any business to transact she
had better transact it now. She told me she had no Inisincss;
that she had attended to all such affairs. She said. I have given
all to mv only child, my daughter. I have no will to make. I
have nothing to will." She was then living with her daughter,
and had been for many years. IT'-r repeated declarations that
she had given evervthing to her daui^hter, which her daughter
well knew, present a still further circumstance in support of
Feb. 1904.] Matter of Barefield. 817
the daughter's claim that she had no intention of creating a
trust, for why should she ^^^ create a trust for her mother
when she knew that all that her mother had was given to her.
This testimony, with the facts before alluded to, furnishes
sufficient support for the finding the surrogate must be presumed
to have made — in view of the character of the decree — that
Mrs. Barefield had no intention of creating a trust for hev
mother, and brings this case clearly within Cunningham v.
Davenport, 147 N. Y. 43, 49 Am. St. Rep. 641, 41 N. E. 412,
32 L. R. A. 373, referred to in the surrogate's opinion. In that
case a depositor opened an account in a savings bank in his
own name. Afterward he changed it to his own name in trust
for his brother. The brother died. Three days later the de-
positor changed the account back to his own name. He at all
times held the bank-books; the brother was not informed of
the account, and the depositor denied the trust, claiming never
to have intended to part with the money, although giving no
reason for opening the account in trust. This court holds that
the transaction did not create a trust, and that decision justifies
tlie surrogate in holding that, in the light of the facts here,
no trust was created.
The appellate division also reverses that portion of the de-
cree which adjudges that the ac-count in the Bank for Savings
in the name of Mary E. Resell belongs to Mrs. Barefield. In
adjudging that the administratrix shall not account therefor,
the surrogate necessarily finds that it did not belong to Mrs,
Resell at her death, and an examination of the record satisfies
us tliat there is evidence to support that implied finding.
Mrs. Barefield testifies that the bank-book came into her
possession in 1884, together witli the following order on the
bank : "Please pay to my daughter the amount and interest
due me on book Xo. 476,029. Mary E. Rosell." Thereafter
the book and order continued in her physical possession.
Edward Barefield testifies tliat he saw this book and order in
Jlrs. Rosell's lifetime, and she informed him that the money
was :\rrs. Barefield's, adding, "I have given it to her and I have
given the bank-book to her."
This is corroborated by Mrs. Rosell's physician, to whom
^^'* she declared just before her death tliat she had given everv-
thing to her daughter. To the same general effect is the testi-
monv of Mrs. Jeffrey.
Here then is evidence of a delivery of the book to the daughter
with written authority for her to withdraw the account and
Am. St. Rep., Vol. 101—52
818 American State Eeports^ Vol. 101. [New York,
interest, together with evidence of exclusive possession on her
part of book and order for fourteen years. This evidence is
uncontradicted, and is certainly sufficient to support a finding
by the surrogate that Mrs. Barefield obtained title to the book
and account by gift.
The remaining item in dispute is the joint account of Mrs.
Resell and Mrs, Barefield in the Kings County Savings Institu-
tion, which the surrogate also holds belongs to Mrs. Barefield
individually.
As to that item counsel for respondent correctly says that
the question is purely one of fact, but incorrectly — for reasons
already pointed out — asserts that the appellate division decided
adversely to the surrogate as to the facts. The form of the
order shows that the appellate division reversed upon the law,
and hence we have only to inquire whether there is evidence in
the record which supports the finding, necessarily implied in
the surrogate's decision, that the book and account belong to
Mrs. Barefield.
She testifies that the book was hers, that slie personally de-
posited the money and that it was her money. If the surrogate
— as he had the right to — believed this testimony, he was au-
thorized in decreeing that the money belonged to her, and that
the estate had no interest in it: Mulcahey v. Emigrant Ind. Sav.
Bank, 89 N. Y. 435.
The order should be reversed, and the decree of the surrogate
affirmed, with costs to both parties payable out of the estate.
Bartlctt, Martin, Yann, Cullen and Werner, JJ., concur.
O'Brien, J., absent.
Order reversed, etc.
The Drpositirifj of One's Otrn Money in a savings bank, to the
depositor's own credit, in trust for another, retaining possession of
the pass-book, making no disclosure or publication of the trust, and
treating it as apparently a mode of transacting his own ])usiness,
does not create a trust: Cunningham v. Davenport, 147 N. Y. 43,
49 Am. St. Rep. 641, 41 N. E. 412, 42 L. R. A. 373. See, too, Bath
Sav. Inst. V. Tlathorn, 88 Me. 122, 51 Am. St. Rep. 382, 53 Atl. 836,
32 L. R. A. 377; Getchell v. Biddeford Sav. Bank, 94 Me. 4.52, 80 Am.
St. Rep. 408. 47 Atl. 895; monographic note to Williamson v. Yager,
34 Am. St. Rep. 219-224.
The Oiniership of a Bank Deposit may be shown to be different from
the apparent ownership imported by the bank-book: Stair v. New
York Nat. Bank, 55 Pa. St. 364, 93 Am. Dec. 759. See. also, Murphv
V. Bordwell. 83 Minn. 54, 85 Am. St. Rep. 454, 85 N. W. 915, 52
L. R. A. 849.
Feb. 1904.] Straus v. American Publishers'' Assn. 819
The Gift of a Bank Deposit may be effected by a delivery of the
bank-book, with an order on the bank to make payment to the
payee of the order: Larrabee v. Hascall, 88 Me. 511, 51 Am. St.
Rep. 440, 34 Atl. 408. See, also, McNamara v. McDonald, 69 Conn.
484, 61 Am. St. Rep. 48, 34 Atl. 54.
STEAUS V. AMEEICAN PUBLISHEES' ASSOCIATION.
[177 N. Y. 473, 69 N. E. 1107.]
A MONOPOLY in the Sale of Books not Protected Ijy Copy-
right offends against the laws of the state of New York
providing that every agreement, contract, arrangement, or combina-
tion whereby a monopoly in the manufacture, production or sale in
this state of any article or commodity of common use may be created,
established or maintained, or whereby competition in this state in
the supply or price of any such article or commodity may be re-
strained or prevented, or whereby, for the purpose of creating, es-
tablishing or maintaining a monopoly within this state of the manu-
facture, production or sale of any such article or commodity, the-
free pursuit in this state of any lawful business, trade or occupation
is ur may be restricted or prevented, is hereby declared to be against
public policy, and illegal and void. Hence, an agreement between
members of an association of publishers and booksellers, whereby
persons selling copyrighted books at a price less than that fixed
by the association are excluded from selling books altogether,
whether copyrighted or not, offends against this statute, and cannot
be upheld on the ground that its only object is to punish those who
refuse to be bound by the wishes of the owners of books which are
protected by copyright, (pp. 822, 823.)
Thaddeus D. Kenneson, for the appellants.
John C. Carlisle and Edmond E. Wise, for the respondents.
^'« PAEKEE, C. J. Chief Justice Marshall said long ago,
in Grant v. Eaymond, 6 Pet. 217, 241, 8 L. ed. 376: "To pro-
n:ote tr.e progress of useful arts is the interest and policy of
every enlightened government It entered into the views of
the framers of our constitution, and tlie power 'to promote the
progress of science and useful arts, hy securing for limited
times to authors and inventors, tlie exclusive right to their re-
spective writings and discoveries' is among those expressly given
to Congress. .... It is the reward stipulated for the advan-
tages derived hy tlie public from the exertions of the individual,
and is intended as a stimulus to those exertions. The laws
which are passed to give effect to this purpose ought, we think,
to be construed in the spirit in which they have been made.
820 American State Reports^ Vol. 101. [New York,
and to execute the contract fairly on the part of the United
States, where the full benefit has been actually received, if
this can be done without transcending the intention of the
statute, or countenancing acts which are fraudulent or may
provo niL-^chievous. The public yields nothing which it has
not agreed to yield; it receives all which it has contracted to
receive. The full benefit of the discover}' after its enjoyment
by the discoverer for fourteen years is preserved and for his
exclusive enjoyment of it during that time the public faith is
pledged."
That case and many otliers were considered recently by the
United States supreme court in Bement v. National Harrow Co.,
18G U. S. 70, 22 Sup. Ct. Rep. 747, 46 L. ed. 1058, Mr. Justice
Peckham writing. After an examination of the cases which
may be said to restrict the exceptions which grow out of a proper
exercise of the police power of the state — of which Patterson
v, Kentucky, 97 U. S. 501, 24 L. ed, 1115, is an illustration —
he says (Bement v. National Harrow Co., 186 U.. S. 91, 22 Sup.
Ct. Rep. 755, 46 L. ed. 1058) : "Notwithstanding these excep-
tions, the general rule is absolute freedom in the use or sale of
rights under the patent laws of the Ignited States. The very
<'bject of these laws is monopoly, and the rule i?, with few ex-
ceptions, that any conditions which are not in their very nature
ill(\::al with regard to this kind of property, imposed by the
yatoiitee and agreed to by the licensee for the right to manu-
facture or use or soil the article, ^'"^ will be upheld by the
courts. The fact that the conditions in the contracts keep up
the monop'dy or fix prices does not render them illegal."
That reasoning is employed as to patent rights. It is equally
appliL'ahle to copyrights, the protection of which was ])erhai;s
the leading object of the association and agreement attacked in
this at tion. And it points to the principle underlying the de-
cision in the Park & Sons Co. Case, 175 N. Y. 1, 96 Am. St.
Pep. 578. 67 N. E. 136, 62 L. R. A. 632, upon which defendants
apparently rest their claim that the judgment of the appellate
division should be reversed. But there is a feature in this case
not to be found in that one, and which requires a different judg-
ment than the one rendered therein, which will now be pointed
out.
While the leading object of this association and agreement
purports to ])e to secure to the owner and publisher of copy-
righted books that protiction which the federal govemment per-
Feb. 1904.J Straus v. American Publishers' Assn. 821
mits them to enjoy for the reasons stated by Chief Justice Mar-
shall (supra), it does not stop there. It also affects the right
of a dealer to sell books not copyrighted at the price he chooses,
or to sell at all, if he fails to comply with the rules of the
association. A combination creating a monopoly of the sale of
looks not protected by copyright offends against the law of this
state as much as if it related to bluestone (Cummings v. Union
Bluestone Co., 164 N. Y. 401, 79 Am. St. Rep. 655, 58 N. E.
525, 52 L. R. A. 262) or to envelopes (Cohen v. Berlin etc.
Co., 166 K Y. 292, 59 N. E. 906), and according to this com-
plaint, which must be accepted as true on this review, such an
outcome is not only possible but probable. But it is not of
moment whether such a result is probable or not, for the test
to be applied is, What may be done under the agreement?
Reference to the complaint makes it clear that the association
has undertaken to provide for the practical exclusion from the
business of «elling books not protected by copyright all wlio re-
fuse to be bound by the rules of the association. And it appears
from the complaint that the practical construction given to
this agreement by those operating together under it is that if
a dealer is suspected of selling copyrighted books at less than
the arbitrary net price it is quite suflScient to exclude him from
selling books altogether. The agreement nowhere '*'** suggests
that it is the object of the association to control the sale of
books not protected by copyright. Indeed, the object of the
association seems to be merely to protect the copyrighted books.
But while the other part of the scheme is apparently sought to
be hidden, it is after all uncovered by the clauses authorizing
the exclusion of any members of the a,'=sociation, or.thot^e who
refuse to be bound by it& rules^ from selling books of any de-
scription.
The fifteenth paragraph of the complaint alleges "That dur-
ing the year 1900 a number of prominent publishers, including
defendants, hereinbefore described as publishers (for the pur-
pose of securing to themselves an unreasonable and extortionate
profit and at the same time with intent to prevent competition
in the sale of books and for the purpose of establishing and
maintaining the prices of all books published by them, or any
of them, and all books dealt in by them, or any of them, and
preventing competition in the sale thereof, unlawfully, illegally
and contrary to the public policy and the statutes of the state
of Xew York .... combined and associated themselves to-
gether,"' ete. The sixteenth paragraph refers to the method of
823 American State Eepoets, Vol. 101. [New York,
organization, and the fact of the adoption of a resolution, and
an agreement to carry out their object; while the seventeenth
states the nature of the agreement as follows: "That as a part
of said unlawful scheme and combination the members of said
association agreed that such net copyrighted books, and all
other books, whether copyrighted or not, or whether published
by them or not, should be sold by them to those booksellers only
who would maintain the retail net price of such net copyrighted
books for one year, and to those booksellers and jobbei-^ only
who would furthermore sell books [the word "copyrighted" is
omitted at this point] at wholesale to no one known to them
to cut or sell at a lower figure than such net retail price, or
whose name would be given to them by the association as one
who cut such prices."
It will be seen that while the leading object of this portion
of the agreement apparently is to maintain the retail net "*"**
price of copyrighted books it operates in fact so as to prevent
the sale of books to dealers who sell books of any kind to one
who retails copyrighted books at less than the net retail price.
And the agreement further provides that evidence shall not
be required by the bookseller or jobber in order to restrain him
from selling to one who has been blacklisted, but that all that
shall be required to govern his action, and to prevent him from
selling to such a person, shall be that the name has been given
to him by the association as one who cuts such net prices. It
has been admitted, and must be, that the agreement may be so
worked out as to deprive a dealer from selling any books what-
ever, thus breaking up his business.
But, it is said, that is only intended as a punishment for one
who refuses to be bound by the wishes of the owner of the
copyrighted book as to its selling ])rice; in otber words, that
the association inflicts ui'On him the penalty of a destruction
of his business, because of his refusal to abide by the rules of
the association. It is of course of no consequence how this
course of action may be descril)ed by those who invented it,
for if it be the fact that the cOTnl)ination which agrees to ex-
clude otliers from an unprotected business violates the statute,
then it inattors not what excuse may l)e offered for it. It is
the excuse, not the statute, whicli must give way.
The eighteenth paragra])h of the complaint contains what
purports to he a practical construction given to this agreement
by the members of the association. It states: "That, in pursu-
ance of said unlawful combination and agreement, said Amcri-
Feb. 1904.] Straus v. American Publishers' Assn. 823
can Booksellers' Association and its members have continuously
co-operated with and assisted the American Publishers' Associa-
tion and the members thereof in establishing and maintaining
prices of such books, and preventing competition in the supply
and sale of the same, and still continues so to do; and plaintiffs
say that in compliance with said agreement neither said asso-
ciations nor any of the members thereof will sell or supply
books at any price to any dealer, whether a "**** jnember of
said association or not, and whether such books are copyrighted
cr not, or are not published by said American Book Publishers'
Association or its members, who resells, or is suspected of re-
selling, such copyrighted books at less than the arbitrary net
j)rice fixed by said unlawful combination, nor will the said
association nor any of their members sell or supply any books
whatever to anyone who resells, or is suspected of reselling,
such copyrighted books to any dealer who thereafter sells the
same at less than such arbitrary net price."
Here, then, we have a practical construction of the agree-
ment— one put upon it by the parties to it — and it is such a con-
struction as the language employed calls for. And it discloses
that the parties who are acting under the agreement assume it
to be their right and their duty by virtue of it not to sell or
permit to be sold books of any kind or at any price to any dealer
"who resells or is suspected of reselling copyrighted books at
less than the arbitrary net price," whether such dealer be a
member of the association or not.
The intended effect of this is to prevent any dealer who is
even suspected of reselling copyrighted books at less than the
net price from obtaining books at any price or on any terras,
whether copyrighted or not. And it does not stop there, for
the members of the association agree not to supply him any
books at any price, whether he resells copyrighted books or not
at less than the arbitrary net price, provided he is suspected of
selling to any dealer who thereafter sells the same at less than
such arbitrary net price. And this means — inasmuch as the
members represent ninety-five per cent of the publishers and
ninety per cent of the business done in the book trade — that he
may be practically driven out of the business if anyone chooses
to suspect that a dealer to whom he has sold books has resold
them at less than the price fixed.
The members of the association, therefore, have entered into
an agreement which by its terms — as we read it, and as they
have construed it in their every-day working under it — under-
824 American State Reports, Vol. 101. [New York.
takes to interfere with the free pursuit in this state of a lawful
*** business in which any mem'ber of the community has a
right to engage, a business in which a monopoly is not secured
by the federal statutes, namely, that of dealing in books which
are not protected by copyrights; and hence it is in violation of
chapter 690 of the Laws of 1899, which provides: "Every con-
tract, agreement, arrangement or combination wbereby a monop-
oly in the manufacture, production or sale in this state of any
article or commodity of common use is or may be created, estab-
lished or maintained, or whereby competition in this state in
the supply or price of any such article or commodity is or may
be restrained or prevented, or whereby for the purpose of creat-
ing, establishing or maintaining a monopoly within this state
of the manufacture, production or sale of any such article or
commodity, the free pursuit in this state of any lawful busi-
ness, trade or occupation is or may be restricted or prevented,
is hereby declared to be against public policy, illegal and void."
The order should be affirmed, with costs.
Justices Gray and Bartlett Dissented. They contend that the
statute relied upon introduced no new rule of law and but stated a
general policy prevailing before its enactment, and hence that the
•lecision of the court should be controlled by Park & Sons v. National
Druggist Assn., 175 N. Y. 1, 96 Am. St. Ecp. 578, 67 N. E. 136, that
the agreement before the court was merely one designed by the
owners of copyrighted books to protect their interests therein, and
that, as an incident to their right to do so, they could agree to have
no dealings whatever with persons who sold copyrighted books at
prices below those fixed by the association.
Comhinations and .^fonf)poli(^s in respect to patented articles arc
discussed in the monographic note to Harding v. American Glucose
Co., 74 Am. St. Rep. 260-262, on what combinations constitute unlaw-
ful trusts. See. too, the case of Park & Sons Co. v. National Whole-
sale Druggists' Assn., 175 N. Y. 1, 96 Am. St. Rep. 578, 67 N. E. 136.
CASES
IN THB
SUPREME COUET
or
NORTH CAROLINA.
FAWCETT V. TOWX OF MOUNT AIRY.
[134 N. C. 125, 45 S. E. 1029.]
MUNICIPAL CORPORATIONS— Subject of Necessary Ex-
pense.— A city or town has power to incur an indebtedness for the
erection and operation of plants for the supply of water and electric
lights for municipal use and to sell to its inhabitants as a necessary
municipal expense without the approval of the proposition by a ma-
jority of the qualified voters of the municipality, (p. 825.)
Carter & Lcwellyn, for the plaintiffs.
S. P. Graves, for the defendant.
12S MOXTGOMEEY, J. Whether a city or town has the
right to incur an indebtedness for the erection and operation
of plants for the supply of water and electric lights for munici-
pal use and to sell its inliabitants as a necessary municipal
expense, is the question again presented to us for decision.
Indebtedness incurred by a city oi town for a supply of water
stands on the same footing as indebtedness incurred for light-
ing purposes, and if such indebtedness 1^ a necessary expense,
then whether or not a municipality may incur it docs not de-
pend upon the approval of the proposition by a majority of
the qualified voters of the municipality. It is only in ca.?os
where counties, cities or towns undertake to contract debts or
^2® pledge their faith, or loan their credit or levy taxes, except
for the necessary expenses thereof, that the submission of the
proposition must be made to a vote of the qualified votei-s of
such county, city or town: Wilson v. Commissioners, 74: N. C.
748; Tucker v. Commissioners, 75 N. C. 274.
(8.5)
826 American State Reports, Vol, 101. [N. C.
It is almost impossible to define in legal phraseology the
meaning of the words "necessary expense" as applied to the
wants of a city or town government. A precise line cannot
be drawn between what are and what are not such expenses.
The consequence is that as municipalities grow in wealth and
population, as civilization advances with tl-e habits and cus-
toms of nccessarv' changes, the aid of the courts is constantly
invoked to make decisions on this subject. In the nature of
things it could not be otherwise; and it is not to be expected,
in the changed conditions which occur in the lives of progres-
sive people, that tilings deemed unnece.-sary in the government
of municipal corporations in one age should be so considered
for all future time. In tlie eiforts of the courts to check ex-
travagance and to prevent corruption in the government of
towns and cities, the judicial branch of the government has
probably stood by former decisions from too conservative a
standpoint, and thereby obstructed the advance of business
i(^eas which would be most beneficial if put into operation; and
this conservatism of the courts, outgrown by the march of prog-
less, sometimes appears at a serious disadvantage.
On this subject this court, in "Wilson v. Commissioners, 74
X. C. 748, uses the following instructive and suggestive lan-
guage: "The analogy of the law of the necessities for infants
is the only one that occurs to us. It is held that if, consider-
ing the means and station of life of the infant, the articles sold
to him may be necessaries under any circumstances, they come
within a class for which the infant may be liable, and u\)on his
refusal to pay it is for a jury to determine wliother under the
actual circumstances they were necessary. If, however, ^^'' the
articles are nu^cly ornamental and such as cannct under any
circumstances be necessary to the one of means and station of
tlie infant, the court may, as a matter of law, declare that the
infant is not liable. We do not undertake to sav that this an-
aloiry will furnish a rule which will admit of a close applica-
tion. r)ut if treated merely as an analoi^y in the absence of
other guides it may 1)0 of some general use."
It seems strange that it should be declared In- some of our
courts of hi^diest reputation that the purchase of a town clock
or hay scales or a pump is a necessary expens<\, when the sup-
ply of light to enable its citizens to walk its streets in security,
or a supply of wholesome water to prevent disease and suffer-
ing, should l)e held as not a necessary expense. It is prettv
generally held by the courts that the expense incurred for the
Dec. 1903.] Fawcett v. Town of Mount Airy. 827
widening of streets is a necessary expense, that a market-house
is a necessary expense, and surely if that be sound law the
courts ought to hesitate before they would pronounce a debt
incurred for the furnishing of light and water not to be a nec-
essary expense. And it seems to us that it may be reasonably
considered as certain that the words "necessary expense" do
not mean expenses incurred or to be incurred for purposes or
objects that are only for the procurement or maintenance of
things absolutely essential to the existence of the municipality.
The expenditure of money for the widening of streets, the erec-
tion of market-houses, town clocks and hay scales are all consid-
ered as necessary expenses, and those things are not essential to
the life of the municipality. A city or town might be fairly well
governed and be prosperous without having appointed and fixed
particular places for the sale of market produce, or without
keeping the time of day, or weighing grain and fodder; and
certainly expenses incurred for water and light are more nec-
essary than those for a market-house, clocks and scales. The
words "necessary expense," then, must mean such expenses as
are or may be incurred ^^^ in the establishing and procuring
of those things without which the peace and order of the com-
munity, its moral interests and the protection of its property
and that of the property and persons of its inliabitants would
seriously suffer considerable damage, leaving out of view the
matter of the great inconvenience that would be attendant
upon our present social life for want of such expenditures.
The use of water from wells dug in populous communities is
prescribed by the recent progress made in the science of bacteri-
ology, the practical lessons of that science having been learned
by the people generally.
It is of common knowledge that the most fearful scourges
of certain most dangerous forms of fever arise from the use
of water from wells in towns and cities; and it is out of the
power of individuals in towns and cities to erect and operate
appliances for supply of water. As to the question of light-
ing the streets and public places, the experience of all who live
in towns and cities of any considerable population is that with-
out lights upon the streets and in the public buildings botli
life and property would be insecure, to say nothing of the al-
most complete destruction of the conveniences of life and the
marring of its social features. The fire department, probablv
the most important of the municipal departments, would be
rendered ineffective, and a considerable part of the commerce — •
828 American State Reports^ Vol. 101. [N. C.
trade of the country — would be destroyed; for under our
changed conditions a good deal of the traffic between dif-
ferent communities and a respectable part of our mail service
are conducted at night. It will not do to say that a city or
town may expend money or incur a debt for the purchase of
lights by the month or the year, but that, it may not incur a
debt for the construction and operation of a system of water-
works or for the installment of an electric plant for lighting.
If the matter of lighting is a necessary expense, then how and
in what manner the city shall furnish such ^^^ lighting is with
the authorities of the city or town to determine. The courts
determine what class of expenditures made or to be made by
a municipal corporation come under the definition of "neces-
sary expenses.'^ The governing authorities of the municipal
corporations are vested with the power to determine when they
are needed, and, except in cases of fraud, the courts cannot con-
trol the discretion of the commissioners.
Our conclusion, then, is tliat an expense incurred by a city
or town for the purpose of building and operating plants to
furnish water and lights is a necessary expense, an,d is not
such a debt as must be submitted to a popular vote before it
can be incurred, under section 7 of article 7 of the consti-
tution; and that under the general law of North Carolina in
respect to cities and towns, the Code, sections 3800 and 3821,
municipal corporations may c-ontract such debts and provide
for their payment, unless there is some feature in the charter
of such city or town which prohibits it.
The power to light the streets and public buildings and places
of a city is one of implication, where it is not specially con-
ferred, because tlie use of such power is necessarv' to fully pro-
tect the lives and comfort and property of its inhabitants. It
is a most important factor, too, in the preservation of tlie peace
and order of the community: Croswell's I.aw of Electricity, sec.
190; Mauldin v. Greenville, 33 S. C. 1, 11 S. E. 434, 8 L. R.
A. 2!)1 ; Lot v. Wavcross, 84 Ga. 681. 11 S. E. 558. In the
case of Crawfordsville v. Bradon. 130 Ind. 149, 30 Am. St.
Kep. 214, 28 N. E. 852. 14 L. R. A. 268, the court said: "So
far as lighting the streets, alleys and public places of a munici-
j)al corporation is concerned, independently of any statutory
jx>w<"r, the municipal authorities liave inherent power to provide
for lighting them. If so, unless their discretion is controlled
l)v sojiie statutory restriction, tliey may in their discretion pro-
vide that form of light which is best suited to the wants and
Dec. 1903.] Fawcett v. Town of Mount Airi. 829
financial conditions of the corporation.*' It is well settled that
the discretion of ^^** municipal corporations within the
sphere of their powers is not subject to judicial control, except
in cases where fraud is shown, or where the power and discre-
tion are grossly abused to the oppression of the citizen. We
can see no good reason why they may not also^ without statu-
tory authority, provide and maintain the necessary plant to
generate and supply the electricity required. Possessing au-
thority to do the lighting, that power carries with it incidentally
the further power to procure or furnish whatever is necessary
for the production and dissemination of the light.
The cases on this subject heretofore decided by this court
to the contrary of the present decision, one of which was writ-
ten for the court by this writer, are overruled. The conclusion
to which the present chief justice arrived in Mayo v. Commis-
sioners, 122 :N'. C. 5, 29 S. E. 343, 40 L. R. A. 163, is the con-
clusion at which we have arrived in this case.
In the case before us the defendant, the town of ]\rount Airy,
was authorized by an act of the general assembly at its session
of 1901, Private Acts, chapter 216, to submit to the qualified
voters of the town the question of issuing fifty thousand dollars
of town bonds for the purpose of defraying the expenses of con-
structing a system of waterworks and installing an electric
plant to furnish the towTi with water and light. The question
was submitted and carried, and the bonds were issued and sold.
The ]iroceeds were applied for the purposes mentioned in the
act, but were insufficient to complete the plants. The board
of aldermen of the town then passed an ordinance that they
do borrow the sum of fifteen thousand dollars upon pledging
repayment by issuing bonds of like amount with interest.
The plaintiffs commenced tliis action to enjoin tlie issuing
of the bonds, and the injunction was granted bv his honor.
Judge ^IcXcill, and the defendant apjiealed. His honor fol-
lowed the decisions of tliis court, and the error he committed
was not liis own; but it was error, nevertheless.
Ee versed.
For AutJiorities beariTijr npon the decision in the principal case
see Jacksonville Elec. Tjig^ht Co. v. Jacksonville, 36 Fla. "•''9 51 \ni'
St. Rep. 24, IS South. 677. 30 L. R. A. 540; Mitchell v Xegaimce 113
Mich. 359, 67 Am. St. Eep. 46S, 71 IST. W. 646, 38 L. R. A.' 157,
Saleno v. Xeosho, 127 Mo. 627, 48 Am. St. Rep. 653, 30 S. W. 19oi
27 L. R. A. 769; Crawfordsville v. Braden, 130 Ind. 149 30 Am St'
Rep. 214, 28 N. E. 849, 14 L. R. A. 26^8; Laporte v. Gamewell Fire
Alarm Tel. Co., 146 Ind. 466, 5^ Am. St. Rep. 359, 45 N. E. 588 35
830 American State Keports^ Vol. 101. [N. C.
L. R. A. 686; Lake County Water etc. Co. v. Walsh, 160 Ind. 32,
98 Am. St. Rep. 264, 65 N. E. 530; Sumner County v. Wellington, 66
Kan. 590, 97 Am. St. Rep. 396', 72 Pac. 216; State v. Helena, 24 Mont.
521, 81 Am. St. Rep. 453, 63 Pac, 99, 55 L. R. A. 336; Hull v. Amea,
26 Wash. 272, 90 Am. St, Rep, 743, 60 Pac. 391.
DUVAL V. ATLANTIC COAST LINE RAILEOAD CO.
[134 N. C. 331, 46 S. E. 750.]
RAILROADS — Negligence — Evidence, — Violation by a railroad
company of its contract with a town not to run its trains through tho
streets above a certain speed, is evidence of negligence in an action
against it for personal injury to a person upon the street, (p. 831,)
NEGLIGENCE — Imputable, — The negligence of the driver of
a vehicle cannot be imputed to a passenger or guest riding therein,
(p. 831.)
NEGLIGENCE — Imputable, — One who is injured by tho joint
or concurring negligence of a private person with whom he is rid-
ing by invitation as a guest or companion, and a third person, is
not chargeable with the negligence of the driver, so as to prevent
recovery for an injury received, (p, 842.)
I). L, Ward and M, De W, Stevenson, for the plaintiff,
Sinnnons & Ward and N, J, Eouse, for the defendant.
:wi DOUCiTvAS, J. This is an action for damafres for per-
gonal injuries. The jury found that the plaintiff was injured
hy the n('<rli,(rence of the defendant, and that she contributed to
tier injury bv her own neglig'ence. Tliere are hut two excep-
tions tliat we think it necessary to pass upon in this appeal, both
to tho charfre of the court, Amonir other thinfr? the court
ciiar^n'd as fol!ow=: "The plaintiff introduced a contract wherein
it is provided that the East Carolina Land and Railroad Com-
pany shall not run its locomotive throufjh the streets of Xew
r>(Tn at a spred frreater than three miles an hour. That the
whi.-tlc shall be sounded before entering npon said streets, and
the bell upon the en<:ine tolled while ^^- jiassinn- throu,Ldi the
streets, etc. .And it is admitted that the defendant has suc-
cfeded to the ritzhts and liabilities of the East Carolina Land
and T>umber Company, The court charges you that this is a
contract between the city and the defendant company, and
that there is no evidence that its provisions have been enacted
into an ordinance by the city, and the jury cannot consider the
March, 1904.] Duval v. Atlantic Coast Line R. R. Co. 831
I^rovisions of the same as bearing upon the question of the
negligence of the defendant."
In this we think there was error. The only object the city
could have had in limiting the rate of speed at which a train
was permitted to run through its streets was the protection of
the traveling public. It was similar to an ordinance, in pur-
pose and legal effect at least, in civil actions. We do not feel
compelled in this case to go to the extent of saying that the
violation of such a provision in a contract gives rise to a
cause of action; but we hold that, equally with the violation
of an ordinance, it is evidence of negligence on the part of
the defendant. If the defendant obtained the grant of its
right of way by virtue of such a contract, it has no right to
complain at the reasonable enforcement of its conditions and
limitations : Gorrell v. Greenboro Water Supply Co., 12-i X. C.
328, 70 Am. St. Rep. 598, 33 S. E. 720, 46 L. R. A. 513.
The court further charged the jury as follows: "If you fmd
from the evidence, by the greater weight or preponderance
thereof, that the plaintiff was riding in a buggj' driven and
controlled by her father; that the plaintiff's fatlier was negli-
gent in approaching the crossing and that such negligence
contributed to the injury of which the plaintiff complains as a
proximate cause thereof, then such negligence of the plaintiff's
father is imputable to the plaintiff as her own negligence."
This also was error. Imputable negligence, or identifica-
tion, as it is sometimes called from analogy to the Roman law,
has never been recognized in this state, and has received but
^^^ scant recognition in any part of this country. The ques-
tion was directly presented and expressly decided in Crampton
V. Ivie, 126 X. C. 894, 36 S. E. 351, in which this court says:
"We may regard it as settled law that the negligence of a
d]-iver of a public conveyance is not imputable to a passenger
therein, unless the passenger has assumed such control and
direction of said vehicle as to be considered as practiciilly in
exclusive possession thereof. In other words, the possession
of the passenger must be such as to supersede for the time be-
ing the possession of the owner to the extent of making the
driver the temporary servant of the passenger."
In the case at bar it appears that the plaintiff was not
traveling in a pulilic conveyance but in a buggy driven bv her
father. We will assume that slie was not a passenger for hire,
but was riding in her father's buggy as his guest. We do not
think this makes any difference either in principle or in legal
"^33 American State Kepoets, Vol. 101. [N. C.
liability. She was certainly not in exclusive control of the
vehicle, nor could her father be considered in any sense as her
servant. We are aware that in a few instances it has been
held that while contributory negligence cannot be imputed to
one riding in a hired vehicle, it may be imputed to him if he
is a mere guest. The overwhelming weight of authority is
against any such distinction, and in common witli nearly all
the courts of final jurisdiction we are utterly unable to see any
reasonable basis for such a conclusion.
The only ground for the doctrine of imputable negligence
in any of its phases is the assumed identity of the passenger
and driver arising out of an implied agency. It is contended,
as he selected his own driver he made him his agent, not only
for the general purposes of his employment but for all possi-
ble contingencies that might happen. Under this doctrine it
would seem that if the driver broke the passenger's neck he
would be acting wdthin the scope of his agency. This ^**"* may
be so, but it docs not seem so to us. Of course, if tlie
passenger were injured through tlie negligence of the driver
alone, he must look alone to him or to his master for his re-
covery; but if he is injured tlirougli the concurring negligence
of the driver and some one else he may sue eitlier. This is
equally true whether the plaintill: is a passenger for hire or a
mere guest. AVe see no reason why the latter should be placed
at any legal disadvantage. In fact, it would seem that if there
were any difference, the passenger for hire, having tlie legal
right to the services of his driver, would be in a position to
exercise a greater degree of control than one whose presence
was merely permissive. An examination of tlie origin growth
and decadence of the doctrine seems to us to sliow the correct-
ness of our conclusions aside even from the weiglit of authority.
The doctrine that the negligence of a driver was iin])utable
to tlie passenger is considered to luive originated in the English
case of Thorogood v. Bryan, decided in 1849, and reported in 8
Com. P>. 115. The action was brought against the owner of
an omnibus l)y wliich the deceased was run over and killed.
The omnibus in which he had been carried had set him down
in the middle of tb road instead of drawing up to the curb,
and Ix-fore he could get out of the way he was run over l)v tlie
defendant's omnibus, which was coming along at too rapid a
jiace to be stopj)ed in time to prevent the injury. The court
liirccted the jury that, "if thoy were of opinion that want of
care on the part of the driver of Barber's omnibus in not draw-
March, 1904.] Duval v. Atlantic Coast Line R. E. Co. 833
ing up to the curb to put the deceased down, or any want of
care on the part of the deceased himself had been conducive
to the injury, in either of those cases, notwithstanding the de-
fendant by her servant had been guilty of negligence, their ver-
dict must be for the defendant." This case, after being much
criticised, was expressly overruled in 1888 by the house of
lords in the case of The Bernine, 13 App. Cas. 1, in which
^•^^ opinions were delivered by Lords Herchel, Bramwell and
Watson,
Among other things in his opinion Lord Herchel says: "In
support of the proposition that this establishes a defense, they
rely upon the case of Thorogood v. Bryan, 8 Com. B. 115,
which undoubtedly does support their contention. This case
was decided as long ago as 1849 and has been followed in some
other cases; but though it was early subjected to adverse criti-
cism it has never come for revision before a court of appeals
until the present occasion It is necessary to examine
carefully the reasoning by which this conclusion was arrived at.
Coltman, J., said : 'It appears to me that having tnisted the
party by selecting the particular conveyance the plaintiff has
so far identified himself with the owner and her servants that
if any injury results from their negligence he must be con-
sidered a party to it. In other words, the passenger is so far
identified with the carriage in which he is traveling that want
of care of the driver will be a defense of the driver of
the carriage which directly caused the injury.' Maule and
Yaughan Williams, JJ., also dwelt upon this view of the identi-
fication of the passenger with the driver of the vehicle in which
he is being carried. The former thus expresses himself: 'I in-
cline to think that for this purpose, the deceased must be con-
sidered as identified with the driver of the omnibus in which he
voluntarily became a passenger, and that the negligence of
the driver was the negligence of the deceased.' Yaughan
Williams, J., said : 'I think the passenger must for this pur-
pose be considered as identified with the person having the
management of the omnibus he was conveyed by.'
With the utmost respect for these eminent judges, I must
say that I am unable to compreliend this doctrine of identifi-
cation upon which they lay so much stress. In what sense
is the passenger by a public stagecoach, because he avails
^^" himself of the accommodation afforded by it, identified with
the driver? The learned judges manifestly do not mean to
suggest (though some the language used would seem to bear
Am. St. Rep., Vol. 101—53
834 American State Reports^ Vol. 101. [N. C.
that construction) that the passenger is so far identified with
the driver that the negligence of the latter would render the
former liable to third persons injured by it. I presume that
they did not even mean tliat the identification is so complete
as to prevent the passenger from recovering against the driv-
er's master; though if "negligence of the owner's servants is
to be considered negligence of the passenger," or if he "must
be considered a party" to their negligence, it is not easy to
see why it should not be a bar to such an action. In short,
so far as I can see, the identification appears to be elTective
only to the extent of enabling another person whose servants
have been gnilty of negligence to defend himself by the allega-
tion of contributory negligence on the part of the person in-
jured. But the very question that had to be determined was
whether the contributory negligence of the driver of the ve-
hicle was a defense as against the passenger when suing another
wrongdoer. To say that it is a defense because the passenger
is identified with the driver appears to be the question, when
it is not suggested that this identification results from any
recognized principle of law, or has any other efi:"ect than to fur-
nish that defense, the validity of which was the very point in
issue. Two persons may no doubt be so bound together by the
legal relation in which they stand to each other that tlie acts
of one may be regarded by the law as the acts of the other. But
tlie relation between the passenger in a public vehicle and the
driver of it certainly is not such as to fall within any of the
recognized categories in which the act of one man is treated in
law as the act of another. I pass now to the other reasons
given for the judgment in Thorogood v. Bryan, 8 Com. B. 115.
^laule. J., says: 'On the part of the plaintiff it is suggested
tliat a passenger ^'"' in a public conveyance lias no control
over the driver. But I think that cannot witli jjropriety be
sr.id. lie selects the conveyance. lie enters into a contract
v.-itli tlie owner, whom by his servant, tlic driver, he employs
to drive him. If he is dissatisfied witli the mode of convey-
ance he is not o])liged to avail liimsolf of it But as re-
gards the present plaintiff, he is not altogether without fault;
lie chose his own conveyance, and must take tlie consequences
of any default on the part of the driver whom he thought fit to
trust." I confess I cannot concur in this reasoning. I do not
think it well founded either in law or in fact. What kind
of control has the passenger over the driver which would make
it reasonable to hold the former affected by the negligence of
March, 1904.] Duval v. Atlantic Coast Line R. R. Co. 835
the latter? And is it any more reasonable to hold him so'
affected because he chose the mode of conveyance, that is to
say, drove in an omnibus rather than walked, or took the first
omnibus that passed him instead of waiting for another?
And when it is attempted to apply this reasoning to passen-
gers traveling in steamships or on railways the unreasonable-
ness of such doctrine is even more glaring.
The only other reason given is contained in the judgment
of Cresswell, J., in these words : ''If the driver of the omni-
bus the deceased was in had, by his negligence or want of
due care and skill, contributed to an injury from a collision
his master clearly could maintain no action. And I must con-
fess I see no reason why a passenger who employs the driver
to convey him stands in any better position." Surely, with
deference, the reason for the difference lies on the very sur-
face. If the master in such a case could maintain no action
it is because there existed between him and the driver the
relation of master and servant. It is clear that if his driver's
negligence alone had caused the collision he would have been
liable to an action for the injury resulting from it to third
parties. The learned judge would, I imagine, in ^^^ that case
have seen a reason why a passenger in the omnibus stood in a
better position than the master of the driver. I have now dealt
with all the reasons on which the judgment in Thorogood v.
Bryan, 8 Com. B. 115, was founded, and I entirely agree with
the learned judges in the court below in thinking them incon-
clusive and unsatisfactory.
In his opinion Lord Watson says : "It humbly appears to me
that the identification upon which the decision in Thorogood
V. Bryan, 8 Com. B. 115, is based has no foundation in fact.
I am of opinion that there is no relation constituted between
the driver of an omnibus and its ordinary passengers which
can justify the inference that they are identified to any extent
whatever with his negligence. He is the servant of the owner,
not their servant; he does not look to them for orders and
they have no right to interfere with his conduct of the vehicle
except, perliaps, the riglit of remonstrance when he is doing,
or threatening to do, something that is wrong and inconsistent
with their safety. Practically they have no greater measure of
control over his actions than the jiasscnger in a railway train
has over the conduct of the engine-driver."
"We have quoted at length from this case because it is the
distinct and final repudiation of the doctrine by the Iiighc^t
83 G American State Eeports, Tol. 101. [X. C.
judicial tribunal in England, where it originated, as well as
from the further fact that the reasoning upon which the learned
and able opinions are founded apply equally to cases where the
plaintiff is a mere guest. The same may be said of Little v.
Ilackctt, 116 U. S. 336, 6 Sup. Ct. Rep'! 391, 29 L. ed. 652,
which is cited with approval by Lord Herchel in ''The Bcrnia."
Hackett, the plaintiff, was injured by the collision of a railroad
train with the carriage in which he w^as riding. The evidence
tended to show that the accident was the result of the concur-
ring negligence of the managers of the train and of the driver
of the carriage — of the managers of the train in not giving
the usual signals of its approach by ringing a bell and blowing
•'^^ a whistle, and in not having a flagman on duty ; and of the
driver of the carriage in turning the horses upon the track
without proper precautions to ascertain whether the train was
coming. Tbe defense was contributory negligence in driving
on the track, the defendant contending that the driver was
tlicreby negligent, and that his negligence was to be imputed
to the plaintiff. The court left the question of the negligence
of the parties in charge of the train and of the driver of the
carriage to the jury, and no exception was taken to its instruc-
tions on tins head. But with reference to the alleged imputed
negligence of the plaintiff, assuming that the driver was negli-
gent, the court instructed them that unless th^ plaintiff inter-
f(,'red with the driver and controlled the manner of his driving
b.is negligence could not be imputed to the plaintiff. L'])on
a]>pcal tlie judgment was afhrmed. Justice Field, speaking for
a unanimous court, says, on page 3T-4 of 116 U. S., 6 Sup.
Ct. Rep. 394, 29 L. ed. 652: "Cases cited from the English
courts, as we have seen, and numerous others decided in tlie
courts of this country, show that the relation of master and
servant does not exist between the passenger and tlie driver
or ])otwcon the passenger and the owner. In tlie absence of
Ibis relation the imputation of their negligence to the pas-
sf.ngor. wbere no fault of omission or commission is chargeable
to liiiii. is against all legal rules. If their negligence could
lie iin]iiit('(l to bim it would remler him equallv with tbom re-
sponsilile to Ibird parties thereby injured, and would also pre-
clude him from maintaining an action airainst the owner for
injuries received by reason of it. But neither of these conclu-
i^ions can be maintained; neither has the support of anv ad-
judged cases entitled tliem to consideration. The truth is,
tb.e decision in Thorogood v. Bryan, 8 Com. B. 115, rests upon
March, 1904.] Duval v. Atlantic Coast Line R. R. Co. 837
indefensible ground. The identification of the passenger with
the negligent driver or the owner, without his personal co-
operation or encouragement, is a gratuitous assumption. There
ife no **** such identity. The parties are not in the same posi-
tion. The owner of a public conveyance is a carrier and the
driver or the person managing it is his servant. Neither of
them is the servant of the passenger and his asserted identity
with them is contradicted by the daily experience of the world."
Again, the court says on page 379, 116 U. S., 6 Sup. Ct. Rep.
397, 29 L. ed. 651 : "There is no distinction in principle
whether the passengers be on a public conveyance like a rail-
road train or an omnibus, or be on a hack hired from a public
stand in the street, for a drive. Those on a hack do not be-
come responsible for the negligence of the driver if they exer-
cise no control over him further than to indicate the route they
wish to travel or the places to which they wish to go. If he
is their agent so that his negligence can be imputed to them,
to prevent their recovery against a third party he must be their
agent in all respects, so far as the management of the carriage
is concerned, and responsibility to third parties would attacli
to them for injuries caused by bis negligence in the course of
his employment. But, as we have already said, responsibility
cannot within any recognized rules of law be fastened upon one
who has in no way interfered with and controlled in the mat-
ter causing the injury. From the simple fact of hiring the
carriage or riding in it no such liability can arise. The party
hiring or riding must in some way have co-operated in produc-
ing the injury complained of before he incurs any liability for
it. 'If the law were otherwise,' as said by ]\[r. Justice Dcpue
in his elaborate opinion in the latest case in Xew Jersey, *'not
only the hirer of the coach, but also all the passengers in it
would be under a constraint to mount the box and superin-
tend the conduct of tlie driver in tlic management and control
of his team, or be put for remedy exclusively to an action
against the irresponsible driver or equally irresponsible owner
of a coach taken, it may ])e froin a coaeli stand, for the con-
sequences of an injury wliicb was the product of the ^^^ co-
operating wroncrful acts of the driver, and of a third per-
son, and that, too, though the passengers were ignorant of
the character of the driver, and of the rosponsiliility of tlie
owner of the team, and strangers to the route over wliicli ihoy
were to be carried.' "
838 American State EEroRTS^ Vol. 101. [N. C.
The court further cites with approval the case of Dyer v.
Erie E}'. Co., 71 N". Y. 228, in which the facts are very simi-
lar to those in the case at bar, in the following words: "The
plaintiff was injured while crossing the defendant's railroad
track on a public thoroughfare. He was riding in a wagon by
the permission and invitation of the owner of the horses and
wagon. At that time a train standing south of certain build-
ings, which prevented its being seen, had started to back over
the crossing without giving the driver of the wagon any warn-
ing of its approach. The horses becoming frightened by the
blowing off of steam from engines in the vicinity became un-
manageable and the plaintiff was thrown or jumped from the
wagon and was injured by the train which was backing. It
was held that no relation of principal and agent arose be-
tween tlie driver of the wagon and the plaintiff, and although
he traveled voluntarily, he was not chargeable with negligence,
and there was no claim that the driver was not competent to
control and manage the horses."
In Transfer Co. v. Kelly, 36 Ohio St. 88, 38 Am. Eep.
558, the plaintiff below (Kelly) was injured while riding on
a street-car in collision with a car of the Transfer Company
and was permitted to recover although it appeared that the
servants of both companies were negligent. The chief justice
in delivering tlie opinion of the court, said: "It seems to us
therefore that tlie nogligence of the company, or of its ser-
vants, should not be imputed to the passenger, where such
negligence contributes to his injury jointly with the negli-
conce of a third ])ai'ty. any more flian it should be so imputed
\\here the negligence of the company, or its servants, was tlie
^^' pole cause of the injury." "Indeed," the chief justice
added, "it seem? as incredible to my mind that the right of
a pas>(>nger to redress against a stranger for an injury caused
diroctlv and proximately by the hitter's negligence, should he
denied on the ground that the negligence of his carrier con-
trihuted to hi? injury, he being without fault himself, as it
would he to hold such passenger responsible for the negli-
genec of hi? carrier whereby an injury was inflicted upon a
stranger. And of the last proposition it is enough to say that
it i? simply ah-urd."
In Ivohinson v. Xew York etc. E. E. Co., GG X. Y. 11. 23
Am. Eep. 1, Church, C. J., a distinguished jurist, speakiufr for
an able court, says: "It is therefore the case of a gratuitous
ride by a female upon the invitation of the owner of a horse
March, 1904.] Duyal v. Atlantic Coast Line E. E. Co. 839
and carriage. The plaintiff had no control of the vehicle nor
of the driver in its management. It is not claimed but that
Conlon was an able-bodied, competent person to manage the
establishment, nor that he was intoxicated or in any way un-
fit to have charge of it. Upon what principle is it that his
negligence is imputable to the plaintiff? It is conceded that
if by his negligence he had injured a third person she would
not be liable. She was not responsible for his acts and had
no right and no power to control them. True she had con-
sented to ride with him, but as he was in every respect com-
petent and suitable she was not negligent in doing so. Can
she be held by consenting to ride with him to guarantee his
perfect care and diligence? There was no necessity for riding
with him. It was a voluntary act on the part of the plaintiff,
but it was not an unlawful or negligent act. She was injured
by the negligence of a third person and was free from negligence
herself, and I am unable to perceive any reason for imputing
Conlon's negligence to her." Again, the court says, on page
13 of Q6 N. Y. and 23 Am. Eep. 1 : "I am unable to find any
legal principle upon which to impute to the plaintiff the negli-
gence "^^ of the driver. The whole argument on behalf of the
appellants on this point is contained in the following paragraph
from the brief of its counsel : 'So if the plaintiff had proceeded
on this journey upon the invitation of Conlon for the like pur-
pose, she having voluntarily intrusted her safety to his care
and prudence, and thus exposed herself to the risk of injury
arising from his negligence or want of skill, she would be pre-
cluded from recovering if he thereby contributed to lier injury.'
If this argument is sound, why should it not apply in all cases
to public conveyances as well as private? Tlio acceptance of
an invitation to ride creates no more rci^ponsibility for tlie acts
of the driver than the riding in a stagecoach or even a train
of cars, providing tliorc was no negligence on account oP the
character or condition of tlic driver or tlio safety of tlie vehicle,
or otherwise. It is no excuse for the negligence of the defend-
ant that another person's negligence contributed to tlio injurv
for wliose acts the plaintiff was not responsil)le. The rule of
contributory negligence is very strict in tliis state and sliould
not be extended, nor sliould tlie rule of imputable ncirlic-cnco
be extended to now cases where the reason for its adoption is
not apparent."
In Union Tac. Ey. Co. v. Lapslev, 51 Fed. ITl, IG L E
A. 800, 4 U. S. App. 445, 2 C. C. ^A. 149, Sanbo'rn, c' J.',
8-iO American State Reports, Vol. 101. [N. C.
speaking for the court, says : "But where the owner and driver
of a team and carriage invites another to ride in his carriage,
no relation of principal and agent is created, no reUition of
master and servant is established, the owner and driver of the
team are not controlled by and are not in any sense the agents
of the invited guest, and to hold him responsible for the negli-
gence of the former by whose permission alone he rides is un-
authorized by the law and repugnant to reason. That he who
suffers injury from another's negligence may recover compen-
sation of the wrongdoer is a principle founded in natural jus-
tice and sustained by every precedent. Tliat where the negli-
gence of the ^■*"* person injured has contributed to the injury
he cannot so recover, bK>cause it is impracticable in the admin-
istration of justice to divide and apportion the compensation
in proportion to the varying degrees of concurring negligence,
is equally well settled. But that he whose wrongful act or
omission has caused the injur}- and damage, and who upon evcjy
consideration of justice and reason ought to make compensation
for it, shall he permitted to escape because a third person over
whom the injured person had no control and whose only rela-
tion to him was that of a guest to his host has boon guilty of
negligence that contributed to the injury, is neither just nor
reasonable. According to the verdict of this jury a loss of
(me thousand dollars was entailed upon the decedent liy the
negligence of tliis defendant. The defendant's wrongful
omission was tlie proximate cause of this damage. The de-
cedent in no way caused or contributed l)y any act or omis-
sion of li-^rs to tliis injury. She had no control over lier Itrothcr,
tlie driver, who may have contributed by liis carelessness to
the damage. I'pon what principle, now, can it be justlv said
that the decedent must licar all this loss wboii slio neither cause(],
was responsiltle for, nor could have prevented it. because this
tliird ]iiTson assisted to cause the injury, the proximate cause
of wliieh wa> tlie wrongful act of the defendant company? If
there exists in the realms of jurisprudence anv sound prin-
cijile iijiuii wliich so unrighteous a punishment of the innocent
and tlie di>eharge of the guilty may be based we liavo been un-
able to di^fuver it.''
In D.an v. Pennsylvania P. l^ Co.. 120 Ta. St. 514, 15 Am.
St.. L'.i.. :■]■'. IS Atl. 720, G L. n. A. 143, Clark, J., deliver-
ing the opinion of the court, says, on page 524: "Quotations
iniLdit l>e given from many ea.^es in the different states illustrat-
ing the very firm and emphatic manner in which the doctrine
March, 1904.] Duval v. Atlantic Coast Line K. R. Co. 841
of this celebrated case has been denied. The authorities in
England and the great current of authorities of this country
are ^■*** against it. Nor can I see why, upon any rule of public
policy, a party injured by the concurrent and contributory neg-
ligence of two persons, one of them his common carrier, should
be held, and the other released from liability. As to this, I
speak only for myself. In my opinion there is no principle
consonant with common sense, common honesty or public policy,
which should hold one not guilty of any negligence, either of
omission or commission, for the negligence of another imputed
to him under such circumstances. Although in Carlisle v. Bris-
bane, 113 Pa. St. 544, 6 Atl. 372, I may appear to have accepted
that doctrine, I mean merely to state that the ground upon
which this court had rested that rule was better than that taken
by the English courts. But if this were not so, Fields was
not a common carrier; Dean was riding in the wagon merely
by invitation of Fields, who happened to be going in the direc-
tion of Fields' home with a load of provisions. He was carried
without compensation, merely as an act of kindness on the
part of Fields, who had sole control of the team and of the
wagon. The case is similar in this respect to Carlisle v. Bris-
bane, 113 Pa. St. 544, 6 Atl. 372, and to the case of Follman
V. Mankato, 59 Am. Pep. 340, 29 X. W. 317. We are clearly
of the opinion that if Dean himself wa?> guilty of no negligence,
the negligence of Fields cannot be imputed to him.''
Tliis case was expressly approved in Bunting v. Ilogsett, 139
Pa. St. 3G3, 23 Am. St. Pep. 192, 21 Atl. 31, 33, 34, 12 L. P. A.
2G8, where the court uses the following language, on page 37G,
139 Pa. St., 23 Am. St. Rep. 192, 21 Atl. 33, 12 L.^R. A.
268: "But Thorogood v. Bryan, 8 Com. B. 115, whicli is tlie
leading case, has been recently overruled in the English court
of appeals: The Bernina (Mills v. Armstrong). 2 Prob. &
D. 58 ; and the doctrine, although formerly accepted in many
of the states, is now generally disa]>pr(>ve(l. The authorities
in England and tlie great current of authority in this country
arc against it. The cases are collected in Dean v. Pennsvl-
vania R. R. Co., 129 Pa. St. 514. 15 Am. St. Rep. 733, G 'l.
1^ A. 143. *''^*' They are numerous, and it is unnecessary
to refer to them here. What was there said was given as an
individual opinion merely, and was, to some extent, perhaps,
obiter dictum, but we are now unanimously of opinion that
the views there expressed, somewhat in advance, contain the
proper exposition of the law. The identification of the pas-
843 American State Reports, Vol. 101. [N. C.
senger with the negligent driver, or the owner, or with the
carrier, as the case may be, without his co-operation or en-
couragement, is a gratuitous assumption. As Mr. Justice
Field said in Little v. Ilackett, 116 U. S. 366, 6 Sup. Ct.
Rep. 391, 29 L. ed. 653; 'There is no such identity. The par-
ties are not in the same position. The owner of a public con-
veyance is a carrier, and the driver or the person managing
it is his servant, neither of them is the servant of the passenger,
and his asserted identity with them is contradicted by tlie daily
experience of the world.' The rationale of the rule of Tlioro-
good V. Bryan, 8 Com. B. 115, is expressly disavowed in our
own case of Loekhart v. Ijitclitenthalcr, 46 Pa. St. 151, and
it is now rejected as untenable and wholly indefensible. Nor
is there any rule or principle of pul>lic poliev which will sup-
port such a doctrine. If a person is injured by the concur-
rent and contributory negligence of two persons, one of tlicm
being at the time tbe common carrier of his person, there is
no reason, founded in puhlic policy or otherwise, which should
release one of them and hold the other. It is true tbe carrier
may be subjected to a higher degree of care than his eotort-
feasor. but this affords no reason why cither or both of tbom
should not be held to that degree of care, respectively, which
the law imposes upon them, and to be answerable in damages
accordingly. Tb.o general rule undouljtedly is if a person suffei's
injury from tbe joint negligence of two parties, and both are
negligent in a maimer wliich contriljutes to tbe injury, tliey
are liable jointly and severally, and it would seem in ]>rincii)le
to be a matter of no consequence tbat one of them is a common
carrier. Xeitber •'*'*'' the comparative degrees of car(^ required
nor tbe comparative degrees of culpability estaldisbcd can affect
the liability of either."
It is unnecessary, as well as impracticalde, to cite all the
oilier cases we bave examined on tbis subjec-t, anil so we will
condne ourselves to a few in which tbe precise f|uestioii under
consideration is directlv presented. Tbat one wbo is injured
liv tlif^ joint or concurring negligence of a private* ]ierson witli
wboni lie is riding ])v invitation as a guest or companion, and
a ildnl jierson. is not chargeable with tbe negligence of tbe
driver, is bold in tbe following cases: ^lasterson v. Xew York
etc. R. R. Co.. S4 X. Y. 247, 38_Am. Rep. 510; Strauss v.
Xewburgh etc. Rv. CV.. 6 App. Div' 2G4, 39 X. Y. Supp. 998;
Kessler v. R.rooklvn etc. R. R. Co.. .T App. Div. 126, 38 X. Y.
Supp. 799; Street liy. Co. v. Rowcll, 89 Ga. 601, 16 S. E.
March, 1904.] Duval v. Atlantic Coast Line K. R. Co. 843
118; Leavenworth v. Hatch, 57 Kan. 57, 57 Am. St. Eep. 309,
45 Pac. 65; Cahill v. Cincinnati etc. Ey. Co., 93 Ky. 345, 18
S. W. 2; Xoies v. Boscawen, 64 N". H. 631, 10 Am. St. Eep.
410, 10 Atl. 690; Ouverson v. Grafton, 5 N. Dak. 281, 65 N.
W. 676; St Clair E. E. Co. v. Eadie, 43 Ohio St. 91, 1 N. E.
519; Carlisle v. Brisbane, 113 Pa. St. 544, 57 Am. Eep. 483,
6 Atl. 372; Philadelphia etc. E. E. Co. v. Hogeland, 66 Md.
149, 59 Am. Eep. 159, 7 Atl. 105; Baltimore etc. E. E. Co.
V. State, 79 Md. 335, 47 Am. St. Eep. 415, 29 Atl. 518; Ala-
bama etc. Ey. Co. v. Davis, 69 Miss. 444, 13 South. 693 ; Foil-
man V. Mankato, 35 Minn. 522, 59 Am. Eep. 340, 29 N". W.
317; Commissioners v. Mutchler, 137 Ind. 140, 36 K E. 534;
2 Jaggard on Torts, sec. 276, p. 982 ; Bishop's Noncontract Law,
sec. 1070.
The rule is thus stated in 7 American and English Ency-
clopedia of Law, 447 : "Occupants of private conveyances : In
the second class of cases there has been and still is much con-
flict among the authorities, but the true principle seems to be
that when a person is injured by the negligence of the defend-
ant and the contributoi-y negligence of one T\ath whom the in-
jured person is riding as a guest or companion, such negligence
is not imputable to the injured person; while on the other hand
it may be imputable when the injured person is in a position
to exercise authority or control over the driver.'' Judge Thomp-
son in ^*^ his Commentary on the Law of Negligence, volunie
1, section 502, thus lays down the rule : "iSTogligence of the driver
is not imputed to the passenger on a private conveyance riding
by invitation. While there are a few untenable decisions to tlie
contrary, nearly all American courts are agreed tliat the rule
under consideration extends so far as to bold that wliere a
person, while riding on a private vehicle by tlic invitation of
the driver or the owner or the custodian of tlie veliicle. and
having no autliority or control over tlie driver and being under
no duty to control bis conduct and having no reason to sus-
pect any want of care, skill or sobriety on bis part, is injured
by tlie concurring negligence of the driver and a tliird person
or corporation, tlie negligence of the driver is not in!i)uted to
him so as to prevent him from recovering damages from tlie
other tort-feai?or."
We cannot better close this discussion than l)y tlie follow-
ing quotation from 1 Shearman and Eedfield on Xegligence,
section 66, and in doing so we deem it projier to say tliat. wliile
we fully approve of the legal conclusions arrived at by the dis-
84-i American State Reports, Vol. 101. [N. C.
tinguished authors, we do not wish to be held entirely responsi-
ble for the vigor of their language : "Doctrine of identification :
As already stated, the fact that the injury was caused by the
joint negligence of the defendant and a mere stranger is uni-
versally admitted to be no defense. But in the famous case
of Thorogood v. Bryan, 8 Com. B. 115, an English court in-
vented a new application of the old Koman doctrine of identi-
fication, and held that a passenger in a public vehicle, though
having no control over the driver, must be held to be so iden-
tified with the vehicle as to be chargeable ^vith any negligence
on the part of its managers which contributed to an injury
inflicted upon such passenger by the negligence of a stranger.
In former editions we devoted much space to the refutation
of this doctrine of 'identification.' But it is needless to do
so any longer, since the entire doctrine has, since our first
^"*^ edition, been exploded in every court, beginning with New
York and ending with Pennsylvania. It was finally over-
ruled in England a few years ago. The only remnant of this
doctrine wliich remains in sight anywliere is the thcorv that
one who rides in a private conveyance thereby makes the driver
his agent, and is thus responsible for the driver's negligence,
even though he has absolutely no power or right to control
the driver. This extraordinary theorv, wliich did not even occur
to the hair-splitting judges in Thorogood v. Bryan, 8 Com. B.
115. was inventiMl in Wisconsin and sustained by a process of
elaborate reasoning: and this Wisconsin decision, in evident
ignorance of all decisions to the contrary, was recently followed,
with some similar reasoning, in ^lont^ana, and in Xel)raska,
without any reasoning whatever; which last is certninlv the best
method of reaching a conclusion, directly opposed to common
sense and to the decisions of twenty other courts. The notion
tliat one is the "agent" of another, who has not the smallest right
to control or even advise him, is ditlicult to support liv anv scn-
sihle argument. This theory is universally rejected, except in
t!ie three states mentioned, and it must soon be abandoned even
there."
The doctrine of imputable negligence, as far as it relates
to a child, ha.-, been fully discussed and exi)ressly repudiated
by this court in F-ottoms v. Seaboard etc. Jl. R. Co., 114 X. C.
(;!)!». n Am. St. IJep. 799, 19 S. E. 730. 25 L. 11. A. 7S4.
Even if this phase of the question were now before us. we could
add but little to what was there so fully and ably said.
There must be a new trial.
March, 1904.] Cowax v. Egberts. 845
The Running of a Train through a city in excess of the speed au-
thorized by ordinance is negligence: Chicago etc. E. R. Co. v.
Moehell, 193 111. 208, 61 N. E. 1028, 86 Am. St. Kep. 318, and see
the cases cited in the cross-reference note thereto; Daly v. Milwaukee
Elec. Ey. etc. Co., 119 Wis. 398, 100 Am. St. Eep. 893, 96 N. W.
832.
The Negligence of a Parent is not ordinarily imputable to his minor
child: Ives v. Welden, 114 Iowa, 476, 89 Am. St. Eep. 379, 87 N.
W. 408, 54 L. E. A. 854; Wymore v. Mahaska County, 78 Iowa,
396, 16 Am, St. Rep. 449, 43 N. W. 264, 6 L. E. A. 545; notes to.
Westbrook v. Mobile etc. E. E. Co., 14 Am. St. Eep. 591; Barnes
V. Shreveport City E. E. Co., 49 Am. St. Eep. 408. But see the note
to Freer v. Cameron, 55 Am. Dec. 677.
The Negligence of a Driver is not ordinarily imputable to a person
riding with him in the vehicle: Brannen v. Kokomo etc. Co., 115
Ind. 115, 7 Am. St. Eep. 411, 17 N. E. 202; Nesbit v. Garner, 75
Iowa, 314, 9 Am. St. Rep. 486, .39 N. W. 516, 1 L. E. A. 152; Town
of Knightstown v. Musgrove, 116 Ind. 121, 9 Am. St. Eep. 827, 18
N. E. 452; Noyes v. Boscawen, 6'4 N. H. 361, 10 Am. St. Eep. 410,
10 Atl. 690; Mullen v. Owasso, 100 Mich. 103, 43 Am. St. Eep. 436,
58 N. W. 663, 23 L. E. A. 693; Leavenworth v. Hatch, 57 Kan. 57,
57 Am. St. Rep. 309, 45 Pac. 65; Reading Township v. Telfer, 57 Kan.
798, 57 Am. St. Rep. 355, 48 Pac. 134; Gulf etc. Ry. Co. v. Pendrv,
87 Tex. 553, 47 Am. St. Rep. 125, 29 S. W. 1038. Compare Whit-
taker V. Helena, 14 Mont. 124, 43 Am. St, Rep. 621, 35 Pac. 904.
For the application of this rule to cases of collisions with railway
trains, see Miller v. Louisville etc. Rv. Co., 128 Ind. 97, 25 Am. St
Rep. 416', 27 N. E. 339; Dean v. Pennsylvania R. R. Co., 129 Pa. St.
514, 15 Am. St. Rep. 733, 18 Atl. 718, 6 L. R. A. 143; Carson v.
Federal St. etc. Ry. Co., 147 Pa. St. 219, 30 Am. St. Rep. 727, 23
Atl. 369, 15 L. R. A. 257; Illinois Cent. R. R. Co. v. MeLeod, 78 Miss.
334, 84 Am, St. Rep. 630, 29 South. 76, 52 L. R. A. 954.
COWAX V. EGBERTS.
[134 N. C. 415, 46 S. E. 979.]
GUARANTY is a Promise to answer for the payment of some
debt, or tlie performance of some duty, in case of tlie failure of an-
other person who is himself, in the first instance, liable to such pay-
ment or performance, (p. 847.)
GUARANTY OF PAYMENT— Guaranty for Collection.— A
guaranty of payment is an absolute promise to pay a debt at maturitv
if not paid by the principal debtor, while a guaranty for collection
is only a promise to pay the debt upon condition that the guarantee
diligently prosecutes the principal debtor for the recovery of the
debt without success, (p. 847.)
GUARANTY — Absolute, — The words "I do hereby guarantee
any debts" is an absolute, direct, and unconditional promise to an-
swer for the default of the principal debtor, (p. 848.)
GUARANTY — Absolute — Notice of Acceptance. — If an undor-
taking is to guarantee any contract which may be made the obligation
S-iij American State Ueports, Vol. 101. [N. C.
is not collateral and contingent, but absolute and unconditional, and
no notice of acceptance is necessary, (p. 848.)
GUARANTY. — Notice of Acceptance is not required when there
is a direct promise of guaranty, (p. 849.)
GUAEANTY— Consideration. — The promise of the guarantee to
furnish goods to the principal is sufficient consideration to support
the contract of guaranty, (p. 849.)
GUARANTY — Fraud of Principal. — If a principal debtor agrees
to secure a second guarantor before delivery of the contract of guar-
anty, without the kuowledge of the guarantee, but fails to do so, the
guarantor is still bound by his contract, (p. 850.)
GUAEANTY — Negligence of Guarantor.— Failure by the guar-
antor, for a long period, to notify the guarantee that the condition
of the delivery of the contract of guaranty, has not been complied
with, during which time further credit has been extended, estops
the p-uarantor from taking advantage of the breach of such condition,
(p. 850.)
GUARANTY. — Burden of Showing Lack of Diligence by the
guarantee in prosecuting the principal debtor so as to release the
guarantor, is upon the latter, (p. 851.)
Eobcrts Brothers were in 1899 indebted to the plaintiffs for
goods sold to them, and being unable to make further purchases
on credit witliout security, procured their uncle, the defendant,
10 sign and deliver a guaranty in the following words:
avnoxville, Tenn., April 8, 1899.
"I hereby guarantee to Cowan, McClung & Co. any debts
wliich Koberts Brothere now owe or may owe in the future,
10 the extent of two thousand dollare. This obligation to re-
main in full force until tlie debt now due Cowan, ]\IcClung &
Co. is fully di^charged and this agreement annulled in writing.
''\V. S. BOBERTS."
Afti'rward plaintifTs, at dilTercnt times, sold and delivered to
Boberts BrotluTs various goods, wares, and mercliandiso and
by this action seek to recover the amount named in the guar-
anty. Xo notice was given by plaintiffs to defendant of the
acceptance of the guaranty.
^lerrimon & ^Mcrrimon^ for the plaintilTs.
F. A. Sondloy, for the defendant.
'^^^ WALKl']!!. J. The defendant's counsel in his able ar-
gument bef(»re us relied upon three gn-ounds of defense: 1. That
;herc was no evidence tliat the ])lainlifrs had accepted the guar-
anty and notified the defendant of their acceptance; 2. That
ilnrc wa.s no consideration to support the guaranty as to the
t'e' t already due by Boberts Brothers to the plaintiffs amount-
March, 1904.] Cowan v. Robeets. 847
Ing to seventeen hundred and forty-two dollars and fifty cents;
.3. That the garanity was given upon a condition which was
never performed, and that it is therefore void even in the
hands of the plaintiffs.
A guaranty is a promise to answer for the payment of some
debt, or the performance of some duty^ in case of the failure
of another person who is himself in the first instance liable to
such payment or performance: Carpenter v. Wall, 20 N. C.
144. There is a well-defined distinction between a guaranty
of payment and a guaranty for the collection of a debt, the
former being an absolute promise to pay the debt at maturity
if not paid by the principal debtor, when the guarantee may
bring an action at once against the guarantor, and tbe latter
leing a promise to pay the debt upon condition that the guar-
antee diligently prosecuted the principal debtor for the recovery
of the debt without success: ^^^ Jones v. Ashford, 79 X. C.
172 ; Jenkins v. Wilkinson, 107 N. C. 707, 22 Am. St.^ Eep.
911, 12 S. E. 630. The guaranty may also be absolute in
form, or one which binds the guarantor to pay unconditionally,
or, at all events, upon the default of the principal, or it may
be in the form merely of an offer to become bound upon the
default of the principal. In the former case, tbat is, wbere
there is an absolute guaranty or an unconditional promise to
indemnify against loss by the principal's default, no notice of
acceptance by the guarantee is required, the liability of the
guarantor being fixed and determined by the ordinary rules in
tlie law of contracts. In the latter case, when the transaction
takes the form of an offer merely to become responsible for the
principal, notice of acceptance of the offer is of course neces-
sary in order to charge the party, who makes tbe offer, as
guarantor, and this is so because the minds of the parties have
not met, there is no aggregatio mentiuni until the offer is ac-
cepted. There is a well-recognized distinction therefore be-
tween an offer or proposal to guarantee and a direct promise
of guarantee. The former requires in some cases notice of ac-
ceptance, while the lattc-r does not. When tlie offer to guar-
antee is absolute and contains in itself no intimation of a de-
sire for, or expectation of, specific notice of acceptance, it may
he supposed that the offerer lias a reasonable knowledire thai
his guaranty will be accepted and acted upon, unless he is in-
formed to .the contrary: 2 Parsons on Contracts, 8th ed., c. 2,
sec. 4. and notes, where the subject is fiilly discussed. It is
said that if the party distinctly and absolutolv guarantees a
848 American State Eeports, Vol. 101. [N. C.
certain line of credit, it presupposes some sort of a request for
a guaranty, emanating from the guarantee^ and for this reason
no formal acceptance hy the guarantee is necessary; but if
it be only a propo.-ititn to guaranti'c the credits, and not a posi-
tive promise to guarantee them, the acceptance of tlie propo-
sition must, in some ^'^ '"'a-y, and within a reasonable time,
le communicated before the guarantor can be held liable on it:
Tiedeman on Commercial Paper, sec. 420.
In our case, the guaranty is a direct and unconditional prom-
ise to answer for the default of the principal to the amount
of two thousand dollars. The words of the contract are in
praesenti, "I do hereby guarantee," and superadded are the
words, "This obligation to remain in full force.'^ Language
could not be stronger to express the intention to become liable
at once without any expectation of notice that tlie plaintiffs
will accept the guaranty. It was not an offer, nor did it imply
an offer merely, but it was in itself a complete and binding
}'romise to guarantee and needed only tlie sale of the goods
by tl.e plaintiil's to inake it otherwise elTectual: 1 Parsons on
Contracts, -fGG. 4(57.
We cannot distinguish this case from Straus v. Bcardsley,
7 9 X. C. oO, where the court says: "If the undertaking be to
guarantee the contract which may be made, the obligation is
not collateral and contingent, but absolute and unconditional,
and no notice is necessary The undertaking is to pay
a certain sum, and ])y the terms of the condition it is diseliarged
only wlion the goods have been delivered under its provisions,
l)y actual payment of tlie purchase price. If the goods are de-
livered, the contract is to pay for them, and a compliance with
this condition is the only means of discharging the obligation.
It thus became tlie duty of the intestate and his associates to
ascertain for themselves if the plaintilfs furnished the goods
and that they were ])aid for, and no notice or demand was
nc/essary to charge them with the debt"'': See, also. Walker v.
I'.rinklcv. I'M X. C. 17, 42 S. E. 333.
In Williams v. Collins, 4 X. C. 382, 383, this court drew the
flistinction between a guaranty that a certain person will be able
to comply with the j)ro]>osed contract and one '*^^ wherein the
])rnmisc is that he shall comply. In the latter case which is
fnirs. the court held that the guarantor, "to all legal conse-
quences, Ijccame pledged absolutely to the same ext^-nt as the
principal debtor was bound, as soon as the guarantee parted
with his property." In Shewell v. Knox, 12 X. C. 404, all the
March, 1904.] Cowan v. Egberts. 849
judges agreed that, if the guaranty is absolute and addressed
to an individual, no notice of acceptance is necessary, and one
of the judges held that it was not even necessary when a letter
of credit was given under the circumstances of that case. The
general principle as to when notice of acceptance of an offer to
contract becomes necessary is considered in the cases of Crook
V. Cowan, 64 N. C. 743, and Ober v. Smith, 78 N". C. 313.
The question as to notice of acceptance in cases of guaranty is
very ably and exhaustively discussed, with a full review of the
English and American authorities, in the case of Wilcox v.
Draper, 12 Neb. 138, 41 Am. Eep. 763, 10 N. W. 579, and
the conclusion is reached that when there is a direct promise
of guaranty no notice of acceptance is required: Allen v. Peck,
3 Cush. 242; Powers v. Bumcratz, 12 Ohio St. 273; Union
Bank V. Coster, 3 N. Y. 212, 53 Am. Dec. 280; City Nat. Bank
V. Phelps, 86 N. Y. 484; 2 Addison on Contracts, 8th ed., 84
(*6ol). The case of Gregory v. Bullock, 120 N. C. 260, 26 S.
E. 820, does not apply, as the court held that there was no con-
tract at all in that case, and what is said about the guaranty
was with reference to the particular facts under consideration,
from which it appeared that there was only "a proposal based
upon an uncertain event.'' The guaranty in this case as to
both tlie past and future indebtedness is evidenced by one and
the same instrument and is supported by one and the same con-
sideration, and we do not therefore see why tlie law applicable
to the one should not also determine the liability in the case
of the other.
We are of the opinion that the testimony of the defendant
'^^ as to his interviews and communications with the prin-
cipals, Roberts Brothers, and his subsequent promise to pay for
the goods after the guaranty had been executed by him, fur-
nishes some evidence to show that he knew tlie guaranty had
been delivered to the plaintiffs and that tliey wore acting upon
it, or intended to do so.
There was a sufficient consideration to support the guaranty
as to the debt already due. The agreement as to the existing
and the future indebtedness was indivisible, and was based
upon one and the same consideration, which was that the plain-
tiffs should sell more goods to the principals to enable them to
replenish their stock, which he did. It is not necei?sary that
the consideration should be full or adequate, as in the case of
bona ffde purchasers for value. If there was any legal consid-
eration, it is sufficient. The promise of the guarantee to fur-
km. St. Rep., Vol. 101—54
850 American State Reports, Vol. 101. [N. C.
nish the goods was such a consideration and supports the con-
tract of guaranty: 1 Parsons on Contracts, 4G6, 467.
The third ground of defense is not tenable. If the written
guaranty was given to the principals upon condition that it
should not be delivered to the plaintiffs until it was signed by
J, J. Roberts and they delivered it in violation of the condi-
tion, and, thus, as is said in the case, practiced a fraud upon
the defendant, the defendant is bound, as the plaintiffs did not
participate in this alleged fraud, nor is it shown that they had
notice of it. The liability of the defendant is founded upon
the principle that where one of two persons must suffer loss by
the misconduct or fraud of a third person, or by his breach of
confidence, as in our ca^e, the loss should fall upon him who
first reposed the confidence or who, by his negligence made it
possible for the Ickss to occur, ratlicr than on an innocent third
])orson. The liability of the defendant in this respect is fully
established by tlie case of Yass v. Eiddick, 89 X. C. 6. See,
^'^ also, Farmers' Bank v. Hunt. 124 X. C. 171, '32 S. E. 54G;
State V. Lewis, 73 K C. 141, 21 Am. Rep. 4G1.
The plaintiffs agreed to sell the goods to the principals not
upon the single consideration that the defendant would guar-
uiitee the payment of the price, but upon the furtlicr and ad-
ditional consideration that he would guarantee also the pay-
ment of existing indebtedness. He would not have sold but for
tlie last consideration, and therefore by reason of the guaranty
he has been induced to cliange his position, and Siiould the
guaranty, as to that indebtedness, be declared invalid, lie will
le prejudiced, as he no doubt would have taken immediate
steps to collect Ids claim if tlio guaranty had not lieen given.
It will 1)0 impossible for him now to save liimsr-lf for the r*'a-
son that tliC principals liave become insolvent and have lu'eu
adjudged bankrupts. We have said this much, though we do
not concede that, in order *"- ' \'^' the defendant on the iruar-
, ., . ' , lor, and no . • .
jintv, it is neco-sarv to s .,, ,, ..qo m the Sfuarantee s iiosi-
'■'itn tne d ■ .
tinn by which he may be ^ t^ ^-cd if tlie guaranty is hell
to lie void. ^,
We have not commentod upoi, ^ ,io evidence in this case, from
wbirh it at)penrs that tlie defendant know, on the day after
ilie guaranty w: s given, t]:at it bad been sent to the plaintiff-
and bad iir.t 1 oen si-ii<'d Ity J. J. Roberis. and knowino- iki.^
fact, and '"iris' r;i-tii!g"' tlie principals, as lie did, according
to bis own testim- nv. bo delayed for nearlv tlirec months to
notify tke plaintiffs of tlio alleged condition annexed to the
March, 1904.] Cowan v. Egberts. 851
guaranty, and in the meantime they had sold the goods. When
they refused to surrender their security, he finally agreed to
pay the bill for the goods sold after the date of the guaranty.
This was a clear case of negligence on his part, and the conse-
quences of this negligence must be visited upon him and must
not be borne by the plaintiffs, who are innocent parties. As
said in State v. Lewis, 73 N. C. 141, 21 Am. Eep. 4G1, ^24 ^j^g
defendant acted upon the assurance that another would do an
fict which he knew might be defeated or prevented by various
accidents, and he must therefore take the risk of such assur-
ance being fulfilled. He confided in the principals, Eoberts
Brothers, and the condition that J. J. Eoberts should sign
wdth him was communicated to them alone. He failed to use
ordinary precaution either to protect himself or to protect the
guarantee. If the defendant, in any phase of the testimony,
can be regarded as an innocent person in this transaction, it yet
remains as an inflexible rule of the law that wliere one of two
innocent persons must suffer, he, who has enabled a tliird per-
son to occasion the loss, must sustain it. This is said to be a
dc;;-trine of general application, and is a most just and reason-
able one: State v. Lewis, 73 X. C. 141, 21 Am. Eep. 4G1. To
permit the defendant to avail himself of his defense to this
action would also contravene that other just and inflexible
maxim of the law that no man shall take any advantage of his
own wrong.
Xo question arises in this case as to diligence on the part of
the guarantee in collecting the debt from the principal, as this
is a guaranty of payment and not for collection, and, besides,
the burden of proof in this respect would be on tiie defenchmt.
The case shows that notice of the default of the principal was
given, and demand made upon the guarantor before the suit
was commenced.
Our conclusion is tliat tlierc was error in tlie intimation of
0])iniou bv the court adverse to the ])biintin's, by wliieh tiiey
were driven to a nonsuit. The jr.dgment must therefore be set
aside and a new trial awarded.
air. Justice Montgomery Dissented in part and said: "The ^narnntv
upon its fare is ilivisi]>le into two ]iafts: one branch soonis to lie an
obligation for the payment of a debt already existing and duo liv
the principals to the guarantees, and the other branch is in th<^ na-
ture of a security for a debt to be contracted in the future l.y the
principals with the plaintiffs. By the terms of the guaranty in re-
853 American State Reports, Vol. 101. [K C.
Bpect to the debt already due, the obligation appears to be an abso-
lute guaranty, and if there was a consideration to support it, the
defendant is liable for its payment
"As to the second branch of the guaranty — that is, the guaranty
of the amount of the debt to be contracted in the future by the prin-
cipals— a notice of acceptance by the guarantees, the plaintiffs, was
necessary. That branch of the guaranty was not absolute, and in
Gregory v. Bullock, 120 N. C. 260, 26 S. E. 820, the court said: 'The
answer is that the alleged guarantee gave no notice of his accept-
ance within a reasonable time.' In Adams v. Jones, 12 Pet. 213, 9
L. ed. 1060, Mr. Justice Story said: 'Notice is necessary to be given
the guarantor that the person giving credit has accepted or acted
upon the guaranty, and given credit on the faith of it. This is no
longer an open question in this court.'
"In the case of Clune v. Ford, 55 Hun, 479, 8 N. Y. Supp. 719, cited
in the argument here, the guaranty was in these words: 'Dear Sir:
We hereby agree to guaranty the expenses of the members of the
Gaelic AtTiletic Association to the sum of $650 (six hundred and fifty
dollars), or tlie amount due under that figure.' The guarantee was
the proprietor of a hotel in New York City at which the members of
the association were boarding, and were in arrears for board for the
sum of four hundred and seventy-five dollars. After the delivery
of the guaranty they incurred the further expense of one hundred
and seventy-five dollars. The question of notice of acceptance by
the guarantee was not raised, the matter of consideration was the
only point in the case, and the court held that the incurring of the
one hundred and seventy-five dollars expense for the board, after
the guaranty was given, was a sufficient consideration for t'he amount
due in the past. In the case of Paige v. Parker, 74 Mass. (8 Gray)
211, cited on the arguTiient here, the court held that the guaranty was
an absolute one, and therefore that notice was not necessary. The
paper-writing in that case guaranteed tlie prompt payment at matur-
ity of any amount that might be due by the principal for goods,
wares and merchandise to be sold by the guarantee to the amount of
five hundred dollars. The court in that case said that 'however this
may be, we are of opinion that the defendant in this case had notice
that his guaranty was accepted. An absolute guaranty was written
by Blodgctt & Co. in their store and for their benefit. The defend-
ant signed it there and left it with them as a complete contract, and
they retained it. This was an acceptance by them, for which he must
be held to have notice.' "
Notice of Accrptdnce is generally held necessary to complete a con-
tract of guarantv: Gorman Sav. Bank v. Drake Roofing Co., 112
Iowa, 184, 83 N. W. 9G(), 51 L. R. A. 758, 84 Am. St. Rep. 335, and
cases cited in the cross-reference note thereto; Merchants' Nat. Bank
V. Citizons' State Bank, 93 Iowa, C.-IO, 57 Am. St. Rep. 2S4, 61 N. W.
1065; Bisliop v. Eaton, 161 Mass. 496, 42 Am. St. Rep. 437, 37 N. E.
March, 1904.] Carter v. White. 853
665; Taussig v. Eeid, 145 111. 488, 36 Am. St. Eep. 504, 32 N. E. 918.
For authorities holding such notice unnecessary, see London etc. Bank
V. Parrott, 125 Cal. 472, 73 Am, St. Rep. 64, 58 Pac. 164; Bank of
Newbury v. Sinclair, 60 N. H. 100, 49 Am. Eep. 307; Wilcox v.
Draper, 12 Neb. 138, 41 Am. Eep. 763. As to the necessity of giving
the guarantor notice of default, see Mamerow v. National Lead Co.,
2€6 111. 626, 99 Am. St. Eep. 196, 69 N. E. 504.
A Surety Who Signs a Bond on Condition fhat it is not to be de-
livered until others sign it is nevertheless bound, according to many
authorities, unless the obligee has notice of the condition: Benton
County Sav. Bank v. Boddicker, 105 Iowa, 548, 67 Am. St. Eep. 310,
75 N. W. 632, 45 L. E. A. 321; Carter v. Moulton, 51 Kan. 9, 37 Am,
St. Eep. 259, 32 Pac. 633, 20 L. E. A. 309; monographic note to Es-
tate of Eamsev v. People, 90 Am. St. Eep. 194, 195. See, however,
Spencer v. McLean, 20 Ind. App. 626, 67 Am. St. Eep. 271, 50 N. E.
769; Smith v. Spragins, 109 Ky. 535, 95 Am. St. Eep. 391, 59 S. W.
855.
CARTER V. WHITE,
[134 N. C, 466, 46 S. E. 983.]
JUDGMENTS — Ees Judicata. — The decision on appeal from an
order continuing until the time of the hearing of an injunction re-
straining trespass, as to the effect of a judgment in another action
and subsequent partition proceedings is not the law of the case, so as
to be conclusive on appeal from the final judgment in the trespass
suit. (p. 856.)
PARTITION. — Judgment in partition determining the respec-
tive interests of parties thereto is binding on them as against an
after-acquired title, (pp. 861, 862.)
Pruden & Pruden and Shepherd & Shepherd, for the plain-
tiffs.
E. F, Aydlett, for the defendant.
467 COXXOR, J. The plaintiffs, trustees of Swan Island
Club, prosecute this action agrainst the defendant for an alleged
trespass upon the land described in the complaint. They de-
mand judgment for damages and other relief. The defendant
in his answer denies the ownership as alleged, admits an entry
upon the land and sets up title to an undivided interest therein.
Appropriate issues were framed and submitted to the jurv. The
plaintiffs introduced the record of a civil action latelv pending
and determined in the superior court of Currituck countv. wliere-
in the present plaintiffs, James C, Carter and William ]\Iinot,
Jr., together with W. H, Forbes, trustees of Swan Island Club,
were parties plaintiff and the present defendant was party de-
851 American State Eeports, Vol. 101. [X. C.
fendant. It appears from an inspection of said record that the
plaintiffs alleged that they were the owners in fee and in
possession of the land described in the complaint and that the
defendant had committed acts of trespass thereon.
The defendant in his answer denied that the plaintiffs were
owners and alleged that he was the owner in fee of an undivided
interest in the land. He admitted the entry and alleged that the
same was lawful.
The cause came on for trial at fall term, 1896, and the fol-
lo'vnng issue was submitted to the jury: "To wluit part of the
land described in the complaint are the plaintiffs, trustees, and
the defendant respectively entitled ?" and the jury responded :
"The defendant to one fifty-fourth part of the whole, and the
plaintiffs to the balance thereof.'' Judgment was rendered in
accordance with the verdict, "that the defendant owns in fee
simple one undivided fifty-fourth part of said land and the
plaintiffs, trustees, the balance of the same." A full descrip-
tion of the land is set out in the judgment. Tliereaftor tlie
plaintiffs in said action instituted a >;pocial proceeding in whicli
the defendant therein being the defendant herein, was partv de-
fondant for the '""^ purpose of having partition of the land. Tn
the petition in said proceedings tlie ])laintiffs alleged that thoy
were tenants in common with tlie defendant of the land de-
scril)ed therein, being the same land described in the complaint
in tbe civil action, and sotting fortli tlie interest of the ]iar;ies.
'^rbe clcfcndiuit filial no nn>\v('r and the court rendered jndgincnt
directing partition, api^ointing co;<iniissioncrs for tliat purpose.
Tlie commissioners made partition, allotting to the defendant l)v
metes and ])Ounds one fiftv-fourth part, in value of tbe land
and to tbe plaintiffs the balance thereof; and on SejitenibtT •2■^.
1598, their report was duly confirmed by the court and tlie par-
ties adjudged to bold tbe portions allotted to them l)v tbe com-
missioners. T]iereu])On ibe defendant introdiiced a grant for
tbe locus in quo from tlie state to John Williams. Tlionias Will-
iams and Jcreiuinb T.and, also a deed from Tbomas T.and to
bimself l.-nriuL^ date February 1, 1899. Tlie deftmdant showed
tliat Tbomas \\;:> ore of the heirs at law of Jeremiah Land, one
of tbe persons named in the grant.
Tbe record also states ''that it is admitted tbe defendant is
a tenant in common with them to the extent of tbe interest con-
veved to him under tlie deed from Tbomas Land of Februarv 1,
1599. unless tbe defendant is esto]>ped by tbe proceedings set
up in this action."' It was conceded that the present plaintiffs
March, 1904.] Carter v. White. 855
succeeded to the title of the plaintiffs in said action and pro-
ceeding. The plaintiffs moved for judgment, the motion was
denied and the plaintiffs excepted.
The court instructed the jury that if they found from the
evidence that Jeremiah Land was one of the original grantees
from the state to the land in controversy, that he died seised
of the same, and that Thomas Land, from whom the defendant
bought February 1, 1899, was not a party to the proceedings
introduced in evidence, the defendant was '^^^ not estopped.
The plaintiffs excepted, and from a judgment for the defendant
appealed.
The plaintiffs contend that the defendant is estopped from
asserting title to any portion of or interest in the land in con-
troversy, first, by the verdict and judgment in the civil action
rendered at fall term. 1896; and, second, by the final judgment
in the special proceedings for partition of September 23, 1898.
The defendant admits that be is estopped to assert any title
which he owned at the time of the institution of said action and
of said special proceeding, or wliich he has derived from the
parties to said action, or any person claiming under said par-
ties, but insists that be is not estopped to assert title derived
from Thomas Land, who claims under Jeremiah Land, neither
of whom were parties to or in any manner bound by the judc:-
ment in said action or proceeding. This is the sole question
presented upon this record.
Before proceeding to discuss the authorities relied on by coun-
sel, it will be well to note the disposition of this case made by
this court at August term, 1902: Carter v. White, 131 X. C.
14, 42 S. E. 442. The case as then presented was an appeal from
an order continuing to the hearing an injunction restraining the
defendant from trespassing upon the land pending litigation.
The court decided that the judge was in error in making said
order. It is not contended that the judgment then rendered
was final or worked an estoppel upon tlie ])laintiffs to fuvilier
prosecute this action. The appeal was not from a-.iy "^'judgment"
but from a "judicial order" as provided in section 548 of the
code. Tlie term "ordei-" is sometimes a]>plied '^"'^ to an int'M'-
locutory judgment or decree. Indeed, under the codes of tlie
several states interlocutory judgments and decrees are no lontrer
recognized and "orders" have been substituted tlierefor: 17 Am.
& Eng. Encv. of Law, 763. Tlie defendant, however, says that
+his court in the opinion rendered decided the quesiion now pre-
sented, and that the decision became the "law of the case" and
85G American State Reports, Vol. 101. [X. C.
binding upon us in all other and future steps herein. It is
well settled that the decision of a question presented by the
record and necessary to be decided in the final disposition of
the case is conclusive upon the parties.
We will not entertain a proposition to "rehear" a case by
means of a second appeal: Pretzfelder v. Merchants' Ins. Co.,
123 N. C. 164, 31 S. E. 470, 44 L. R. A. 424; Stezer v. Stezer,
129 N. C. 296, 40 S. E. 62. This principle, however, cannot be
so extended as to include such a case as this. The only question
presented by the former appeal was whctlier his honor should
have made the interlocutory order continuing the injunction to
the hearing, and in no manner involved the final dcterniination
of the case or the rights of the parties upon the trial thereof.
We therefore conclude that it is our duty to decide this appeal
as if presented for the first time, giving to the views expressed
by this court such weight as in our opinion they are entitled.
The learned justice, writing for the court, says : "In the action of
ejectment the only title in issue was that of the defendants; the
plaintiffs' title was not in controversy. It was there found and
adjudged that the defendant was a tenant in common with the
plaintiffs." The record shows "that the action was in trespass
and not ejectment. The plaintiffs expressly put their title in
i^sue by alleging that "they were the owners in fee simple and
in the possession of the land." The defendant not only joined
issue by denying the allegation of ownership, but by affirmative
averment put his title in issue, alleging that he was ^'^ the
owner of an undivided interest, stating the extent thereof. It
is difllcult to see how the title of the parties could liave been
more clearly put in issue. Under the practice prevailing prior
to the adoption of the Code, the defendant's answer would have
constituted a general denial or plea of "not guilty" and a special
pica of lil)erum tenementum. The cause would have been tried
upon the general issue and the special pica. A verdict upon
tlie general issue would not have worked an estoppel, for the rea-
son set forth by Pearson, J., in Rogers v. Ratclilf, 48 X. C. 225;
Stokes V. Farley, 50 N. C. 377.
In tlie last case he said: "If the defendant liad relied on his
ppfxjial plea, tliere would have been an esto])pel in respect of his
title." The effect of a verdict and judgment in actions involving
title to land under the code system is discussed by Pearson, C.
J., in Falls v. Gamble, 66 X. C. 455, where he says: "Had Gam-
ble brouglit his action against Falls for trespass on the land, and
Falls in his answer had admitted the possession of Gamble and
March, 1904.] Carter v. White. 857
the committing of the alleged trespass by his orders and put the
defense on his title, .... a verdict and judgment would have
worked an estoppel in the same way that it would have done in
the old action trespass quare clausum under the plea of lib-
erum tenementum. Indeed, under the Code of Civil Procedure,
in an action for land, when the complaint avers title in the plain-
tiff, the answer admits possession, denies the title of the plain-
tiff and sets up title in the defendant, a verdict and judgment
will conclude the parties and privies in respect to the title. ....
In an action for land, the plaintiff, if he does not wish the ac-
tion to try title, should merely allege that he is entitled to the
possession and that the defendant withholds it to his damage;
and the defendant, if he does not wish the action to conclude the
title, should in his answer merely deny the allegation of the
complaint so as ^''^ to make it in effect a plea of 'not guilty' or
the 'general issue.' "
We therefore conclude that the defendant is estopped by the
judgment to deny the facts found by the jury, to wit, "that the
plaintiffs are entitled to fifty-three fifty-fourths of the land."
The effect of the judgment was to leave the parties in possession
as tenants in common, each having, as between themselves, the
interests adjudged by the court upon the verdict.
In the view which we take of the effect of the partition pro-
ceeding, it is not necessary to decide the effect of this estoppel
upon an after-acquired outstanding title, and we forbear to ex-
press any opinion thereon.
The question next arises as to the effect of the final judgment
in the partition proceeding which was put in evidence. It is
therein settled that the plaintiffs and the defendants are the
owners and entitled to the possession of the several portions of
the land allotted to them by the commissioners. The defendant
admits that he has entered upon that portion of the land al-
lotted to the plaintiffs and committed acts of trespass thereon.
He seeks to justify such entry by alleging that since said parti-
tion he h^s become the owner of one-ninth undivided interest
in said land by virtue of a deed from one Thomas Land, who was
at the time of said partition by title paramount the owner of sucli
interest; that neither said Land nor those under whom he
claimed were parties to said proceeding. Is the defendant es-
topped to assert such title against the plaintiffs? The plain-
tiffs say that he may not do so for that, first, the final judgment
in the proceedings in partition settled the rights of the parties
to the entire tract of land, that the quantity to which each party
858 American State Reports, Vol. 101. [N. C.
was entitled was fixed by the judgment, and that neither party
shall be heard to bring into question the fact so settled and de-
termined, either by showing that he then '*''^ owned a larger in-
terest or that he has acquired an outstanding title; and second,
that there is an implied warranty arising upon the partition,
which estops, by way of rebutter, the defendant from setting up
such title.
In regard to the first question, it is interesting to trace the
development of the law on this subject. We are thereby enabled
to better understand and distinguish the conflicting decisions.
It was held at one time "that a writ of partition or a petition
for partition, which is but a substitute for the former, is a mere
possessory action" and that judgment therein did not bar or
estop the parties in an action of higher dignity involving title:
Freeman on Cotenancy, sec. 529. Mr, Freeman says : "In the
greater portion of the United States actions for partition, like
actions in ejectment, have ceased to be merely possessory actions
and have coiuc to involve the riglit as well as the possession."
lie has collected in the note (Xicely v. Boyles. 40 Am. Dec. 638)
an interesting history of the law and a number of decided cases
upon the subject. It is not necessary, liowever, that we go be-
yond our own reports to find a strong, able and exhaustive dis-
cussion of this question. Judge Pearson, writing for the court
in Armfield v. IMoore, 44 X. C. 157, not only vindicates the wis-
dom in which tlio law of estoppel is founded, "without wliich it
would be impossilile to administer law as a svstom," lait ajqdios
it to proceedings for partition. I'liis case is one of the land-
marks of- our jurisprudence, familiar to every lawyer in the
state. It is there settled beyond controversy that a final decree
or a petition for partition works an estop])el of record uj)on the
parties thereto, and that neither shall he heard to sny that any
of the facts therein settled were not true. He says: "Here we
have facts agreed on ])y the parties, entered on the record, par-
tition and decree in j)ursuance thereof, possession in severaltv.'"
.... Mr. {■"reenian says: "At the ])resent time "*'* there can be
no doiil)t that a judgment in a j)roceeding for the partition of
IuikI is as conelnsive upon the matter put in issue and tried, as
a juiliriiK'iit in any other proceeding, and inay be set up as a bar
to a writ of entry involving the same question of title. And a
suit for par:ition is perha])s the only proceeding known to the
law in which everv possihle question alfecting the title to real
estate mav he made an i>sue and drterniined*' : Freeman on
Judgments, sec. :')01. This principle is in no manner atrected by
March, 1904.J Carter v. White. 859
what is said hy this court in Harrison v. Ray, 108 N". C. 215,
23 Am. St. Rep. 57, 12 S. E. 993, 11 L. E. A. 722. That was
an action to correct one of the deeds of partition.
The defendant's counsel in his well-considered brief insists
that the estoppel operates only upon the title which the parties
to the record then owned, and does not affect his right to buy in
and assert an existing and outstanding title not affected by the
judgment. We have found but one case in our reports in which
this question is presented and decided. In Mills v. Withering-
ton, 19 N". C. 433, it appeared that partition had been made
upon petition of the defendant against the lessor of the plaintiff
in the county coui"t; that the report of the commissioners was
duly confirmed and final judgment rendered; and the lessor of
the plaintiff afterward obtained a grant from the state for the
land which had been assigned to the defendant in severalty, al-
leging that the same was vacant. In the action of ejectment
against the defendant, she rested her right to recover on the
grant. The defendant set up the judgment in the partition pro-
ceeding as an estoppel. Daniel, J., said: "If the land sought
to be recovered by the plaintiff was embraced in the report of the
commissioners, which report had been confirmed and final judg-
ment rendered thereon, then we think the lessor of the plain-
tiff, who had boon a party to that judgment, was concluded,
bound and estopped to controvert anything contained '*'•'* in it.
The legislature by the act of 1789 gave to tenants in common of
real estate the petition for partition, in the place of the ancient
writ of partition. The final judgment at common law in a writ
of partition runs thus, ideo consideratum est quod parti tio prae-
diota firma et stabilis in pcrpetuum tcneatur : Tliomas Coke, 700.
And it was conclusive on tlie parties and all claiming under
them. In Clapp v. Bronagliam, 9 Cow. 569, the court says that
the judgment in partition, it is true, does not cliange tlie pos-
session but it establislies tlie title, and, in an ejectment, must
be conclusive. Tbe judgment of tlie court adjudging a sliaro
to belong to one of the parties and allotting it to him to liold in
severalty, must be sufficient to authorize him to recover it a,s to
all tbe parties to the record, the judgment is as to them an es-
toppel. Tlie act of 1789 gives the same force to a final juilg-
ment in a petition for pai'tition of real estate. It declares that
the division, when made, shall be good and effectual in law to
bind the parties, their heirs and assigns." Battle, J., in his
note to this case, says : "The doctrine of estoppel a,s laid down in
this case is clearly established." Chapter 47 of tbe Code is })rac~
860 American State Eeports, Vol. 101. [N. C.
tically a re-enactment of the act of 1789. Mr. Freeman in his
work on Cotenancy cites this case in support of the proposition
tliat one of several heirs may be bound by a decree of partition,
not only as to rights held by him at the time of partition, hut
also to the rights subsequently purchased of other heirs who
were not parties to the partition, citing the case of Short v.
l*rettyman, 1 Houst. 334, in which it was expressly held by the
Delaware court that "the decree is binding and conclusive, not
only as to the rights which the parties had in the premises 'at
tlie time of the partition, but also as to the rights which they
had subsequently acquired from other heirs of the premises, who
were not parties '*'''* to the partition and were not bound by the
admissions or the decree establishing it."
The supreme court of Missouri, in Forder v. Davis, 38 Mo.
107, says: "We decide nothing here, now, concerning the rights
of any stranger to tlie partition, or of any person not a party
thereto. But in reference to this plaintiff, we think this judg-
ment operates as a bar against him at law, not only in respect of
the estate and title which he then had, but in respect of any
title which he might thereafter acquire. There is here no
covenant of warranty by deed; but there is such a th'iig as an
estoppel in pais and by matter of record, which, like an estoppel
l)y deed, may have the effect to pass an after-acquired title by
ojieration of law. The partition establishes the title, severs the
unity of possession and gives to each party an absolute posses-
sion of his portion. A partition is sometimes altogether the act
of the parties rather than the act of the law. The binding and
conclusive judgment is, in its very nature, very much like the
old livery of seisin under a feoffment, which was matter in pais,
or like a fine or a common recovery which was matter of record,
and these ancient assurances were of that solemnity and high
character that they not only passed an actual estate and devested
what title the party then had, that operated by way of estoppel
to pass all future estate and possibility of right which he might
thereafter acquire: Shepherd's Touchstone, 2-G, 204-20G; Kawle
on Covenants for Title, 402. And we see no good reason why
this solemn judgment in partition, which the statute declares
shall be finn and effectual forever, should not be allowed to have
the same ojjcration against all parties to the record" : See, also,
Keece v. Holmes, 5 Kich. Eq. 540. These authorities would
seem to establish the law as laid down in Mills v. Witherington,
r.i X. C. 433.
March, 1904.] Carter v. White. 861
There is another view, however, of the case which we think
equally conclusive. Mr. Freeman says that "the preponderance
'^'^'^ of the authorities is probably in favor of the theory that as
ea«h cotenant, who has been evicted after a compulsory parti-
tion, may call upon his cotenants to contribute their proportions
of his loss, each of them is, by his obligation of warranty, es-
topped from asserting any independent adverse title to the prop-
erties assigned to the others" : Freeman on Cotenancy, sec. 533.
Mr, Washburn thus states the doctrine: "Where partition has
been made by law, each partitioner becomes a warrantor to all
the others, to the extent of his share, so long as the privity of
estate continues between them. And inasmuch as a warrantor
cannot claim against his own warranty, no tenant, after parti-
tion made, can set up an adverse title to the portion of another
for the purpose of ousting him from the part which has been
parted off to him. When partition has been made, the tenant,
to whom a part has been set out is regarded in law as a pur-
chaser for value of the same" : Washburn on Eeal Property, 723.
In Venable v. Beauchamp, 3 Dana, 321, 28 Am. Dec. 74, the
question is discussed by Marshall, J., and a valuable note is at-
tached by Mr. Freeman. The learned justice says : "But a fur-
ther, and, as we think, a conclusive evidence of the relation sub-
sisting after partition is furnished by the universal acknowledg-
ment and assertion of the principle that to every partition the
law annexes an implied warranty. The implied warranty which
the law annexes to the partition is, it is true, in many respects
special. It is so, not only with regard to the person or pei-sons
who may take advantage of it, but also with regard to the amount
of the recompense The principle being that the loss shall
be equally borne by the parties making the partition, and the
effect that the losing party may have a repartition. But al-
though the effect of the warranty is limited tis to tlie extent of
the recompense and the manner in which it is to be made, it is
not limited as to the land *''* warranted. It embraces the whole
of the land allotted to the warrantee in the partition. As the
law makes each partitioner the warrantor of the other as to the
extent of the portion allotted to him, wlictlier there be an ex-
press warranty in the deed or not, and as no principle is better
settled at common law than that a warrantor is barred or es-
topped to claim against his own warranty, it seems clearly to
follow that no party to a partition can be permitted to assert an
adverse title for the purpose of ousting another party from
his portion, allotted to him by the same partition, though there
862 American State Reports, A^ol. 101. [X. C.
be no express warranty in the deed." We quote this language at
length, as it meets the very ingenious suggestion of the defend-
ant's counsel that the implied warranty should not operate as
an estoppel, because in the event of the eviction by a stranger
the defendant will only be liable to the plaintiffs for one fifty-
fourth of the value of the whole land, therefore he should be
estopped only to that extent. The effect of a warranty, as an
estoppel upon the warrantor, is so fully and ably discussed by
:\rr. Justice Walker in Hallyburton v. Slagle, 132"' K C. 957, 44
S. E. 659, that we deem it unnecessary to do more than to refer to
]iis opinion in that case.
We have examined with care every case cited by the defend-
ant's counsel, and Avhile some of them do lay down the law as
contended by him, they are based upon constructions of statutes,
as in Massachusetts. Those not thus distinguisbed are not in
harmony wath the best considered authorities and decided cases.
We therefore conclude that by the judgment in the special pro-
ceeding for partition the defendant is estopped to assert his af-
ter-acquired title against the plaintiffs. It is immaterial
whether this conclusion is based upon the first proposition or
the last, as they bring us to the same result and are consistent
with each other. His honor should have instructed the jury in
accordance wit]i '*''^ the plaintiff's prayer, and for error in fail-
ing to do so tliere must Ise a new trial.
DissEXTixG orrxiON".
CLAEK, C. J. The identical point now presented was
passed u])on in the former appenl in this case. Carter v. Wliite,
131 X. C. 14, 42 S. E. 442. and the dccisicm then made liy a
inuuiimous court sliould he tlie law of this case. It was tlicre
said: "In partition proceedings between tenants in common no
title passes, only the unity of possession is dissolved and the
title vests in severalty, the common source of title resting un-
di.-turhed": Lindsay v. Beaman, 128 N. C. 189, 38 S. E. 811.
Land's interest never passed to plaintiff and was not represented,
nor was he a ])arty; therefore he was not bound by the action or
s])Ocial pi-ncecding. As to him they were void, and he had a
riglit of entry and possession equally with the otlier tenants in
coirimon. whoiiisdever they miglit he. By this deed passed all
the right of Land to the defendant, who then stood in Land's
shoes, and had all tlie riglits and remedies of Land, independent
of and notwithstanding the judgment in said action and decree
of partition."
March, 1904.] Carter v. White. 863
Thus the identical point now presented has been decided, and
in this action the matter is res judicata. It cannot be presented
by a second appeal. The remedy, if error was committed by
this court, would have been by a petition to rehear: HoUey v.
Smith, 132 N". C. 36, 43 S. E. 501 ; Perry v. \Yestern etc. R R.
Co., 129 N". C. 333, 40 S. E. 191, and cases there cited. Xor does
it vary this rule that the former decision was upon an appeal from
the continuance of the restraining order in this cause, and this
appeal comes up on appeal from a final judgment. The present
appeal is solely upon exceptions that the judge charged in exact
accordance with the former ruling of this court and his refusal
to charge contrary thereto: Setzer v. Setzer, 129 X. C. 296, 40
S. E. 62.
4SO Besides, the fonuer decision was correct. Eichardson v.
Cambridge, 2 Allen (Mass.), 118, 79 Am. Dec. 767, is a case
on all-fours and sustains our former ruling: See- also, Christy v.
Spring Valley Waterworks, 68 Cal. 73, 8 Pac. 849.
In 17 American and English Encylopedia of Law, first edi-
tion, 819, it is said : "A party to a partition who subsequently ac-
quires a new and independent title which was in no way repre-
sented by any of the parties to the suit may bo permitted to assert
it." Hcnderfon v. AVallace, 72 X. C. 451, holds that one not a
party or privy to partition proceedings is in no way affected by
the decree. To same effect, 21 American and English Ency-
clopedia of Law, second edition, 1186: "^Tlie familiar principle
tliat judgments and decrees l)ind only parties and privies is as
applicable to judicial proceedings in partition as to other litiga-
tion," and cases tliere cited. Land not having been a party to
the partition decree in 1895, his interest was not afTected by it.
He could recover it or sell it to another, and the defendant
could acquire and assert it as well as another. This is not the
case of ''feeding an estoppel."
In Harrison v. Pav, 108 X. C. 215. 23 Am. St. Pep. 57, 12 S. E.
919. 11 1j. p. a. 722. it is held that in voluntary- actual partition
tlie deeds convey no title but simply ascertain by metes and
bounds the interest of each. This has been cited and afllrmed
by Douglas, J., in Carson v. Carson, 122 X. C. 6 b^. 30 S. E. 4;
by Shepherd, J., in Port v. Allen, 110 X. C. li'.2. 1 1 S. !•:. 68.-.;
and again as recently as Harrington v. Pawls. 131 X. C. -!0, 42
S. E. 461 ; and was stated also in Lindsay v. I)eaman. 128 X. C.
189, 38 S. E. 811. In 21 American and English l-huvclopciia
of Law, 1193. it is said that "both in voluntary and judicial
partition, the decree does not create or devest any title to, or
864 American State Reports, Vol. 101. [N. C.
other right in, the property, but merely severs the tinity of pos-
session and determines the share which each tenant is entitled to
possess in severalty/'
The title of Land could not be devested by the proceeding to
which he was not a party, and the purchase of it by '^^^ White,
after the decree, was not the purchase of an outstanding encum-
brance or title, but the purchase of an intact interest in the
property which was not the subject of the litigation and decree
to which White had been a party in 1S95. In that proceeding
he only set up the title to the interest he then had. The inter-
est of Land would be good if now held by him, and White can-
not be affected by that decree as assignee of Land's interest, any
more than would be any other purchaser from Land.
THE EFFECT OF COMPULSORY PARTITION.
L The Parties Bound by the Partition.
a. Persons Made Parties to the Suit or Action, 861.
b. Persons not Made Parties to the Action or not Served
with Process.
1. The General Rule, 865.
2. Husbands or Wives of Parties, 866.
3. Encumbrancers, 867.
4. Persons not in Esse, When and How Bound by, 868.
5. Child en Ventre sa Mere, 869.
6. Holders of Contingent Interests, 870.
7. Unknown Owners, 870.
II. The Issues or Questions Settled by the Partition.
a. Issues Involved and Determined at the Common Law, 870.
b. Issues or Questions Settled in Statutory Proceedings for
Partition, 871.
ni. The Effect When the Title, or Some Part of It, is not Bound by
the Judgment.
a. Of the Right to Contribution, 874.
b. The Effect of the Subsequent Acquisition of Title Para-
moimt by One of the Parties, 874.
I. The Parties Bound by the Partition.
a. Persons Made Parties to the Suit or Action. — The efTect of a
judgment in partition, like that of every other judgment, must be as-
certained by inquiring and determining (1) whether the court had
jurisdiction uf the subject matter of the action, and, if so, (2) what
parties were iK'forc the court so as to be bound by its action, and
(3) what wore the issues presented in the proceeding and necessarily
detcrniincMl by the ju<lgincnt. Wlicthcr the court had jurisdiction of
the subject matter is tn be ascertained by examining the constitution
and other laws of tlie state wherein the judgment was pronounced,
and will not be considered here. If the court had jurisdiction of the
subject matter, then, as in other cases, there can be no doubt that its
judgment binds all persons who were made parties to the action or
March, 1904.] Carter v. White. 865
proceeding and who voluntarily appeared therein or on whom process
was served in some mode authorized by law. If a person is so served,
it is not essential that he be within the territorial jurisdiction of the
court, for each state and nation has jurisdiction over all property
within its boundaries, and cannot be impeded in the exercise of such
jurisdiction by the fact that some of the claimants or owners are
not, or never have been, therein and have not voluntarily submitted
themselves to the jurisdiction of the court: Notes to Alley v. Cas-
pari, 6 Am. St. Kep. 181; De La Montanya v. De La Montanya, 53
Am. St. Eep. 179; Tremblay v. Aetna L. I. Co., 94 Am. St. Eep. 550,
One case, and perhaps others, may be found which it is impossible to
reconcile with the rule as thus stated (McBain v. McBain, 15 Ohio St.
337, 86 Am. Dec. 478), but if they are defensible at all, it must be
on the ground that the courts whose judgments were in question had
no jurisdiction when proceeding in partition to do anything but dis-
solve the tenancy in common, and could not decide title or create
any new title, or do anything "except to locate such rights as the
parties might have in distinct portions of the premises, and to extin-
guish it in others."
b. Persons not Made Parties to the Action or not Served with
Process.
1. The General Rule. — In suits in partition, to even a greater extent
than in other proceedings, persons not made formal parties may be
regarded as represented by other parties, and therefore as bound by
the judgment. Who are so represented we shall consider hereinafter.
Except as to persons so represented by the parties actually brought
before the court no one is bound or otherwise prejudiced by a judfr-
ment or decree in partition who was not a party to the action and
either served with process or voluntarily appearing therein: Sutton
v. Read, 176 III. 69, 51 N. E. 801; Green v. Brown, 146' Ind. 1, 44
N. E. 805; Fureness v. Severtson, 102 Iowa, 322, 71 N. W. 196; Savary
v. Da Camara, 60 Md. 139; Munroe v. Luke, 19 Pick. 39; Ilemken
v. Brittain, 12 Rob. 46; Pacific Bank v. Hannah, 32 C. C. A. 522,
90 Fed. 72. It is doubtless further essential that a person sought
to be bound by a judgment in partition because he was a party to
the action, should have been a party in the same capacity in which
he is afterward sought to be bound, and that the matters with re-
spect to which he is sought to be estoppod were in issue in the former
proceeding and therein actually or impliedly determined: flutton v.
Read, 176 111. 69, 51 N. E. 801; Savary v. Da Camara, 60 1\M. 139;
Pacific Bank v. Hannah, 32 C. C. A. 522, 90 Fed. 72.
In affirming that none but the parties to an action or proceed-
ing are bound by the judgment therein, it must always be romem-
bereil that such parties cannot escape from the judgment or in any
manner diminish its effect by a transfer of their interests either
voluntary or involuntary. Hence, the effect of everv judgment ex-
Am. St. Rep., Vol. 3 01—55
866 American State Reports, Vol. 101. [N. C.
tends from the parties to their privies. "All privies are in effect,
if not in name, privies in estate. They are bound because they
have succeeded to some estate or interest which was bound in the
hands of its former owner; and the extent of the estoppel, so far
as the privy is concerned, is limited to controversies affecting this
estate or interest. The manner in which the estate was lawfully
acquired neither limits nor extends the operation of the estoppel
created by a former adjudication, and is, therefore, immaterial. It
is well understood, though not usually stated in express terms in
works upon the subject, that no one is privy to a judgment whose
succession to the rights of property thereby affected occurred pre-
viously to the institution of the suit": Freeman on Judgments, sec.
162. The rules binding purchasers and other successors in interest
by judgments against their grantors or predecessors apply to pur-
chasers under the parties to suits in partition: Tallman v. McCarty,
11 Wis. 401. Persons acquiring interests from the parties to a suit
for partition during its pendency are subject to the rules of lis
pendens and may have their title defeated, or determined not to
exist, by the final judgment, or their title changed from an undi-
vided moiety to an interest in severalty: Freeman on Cotenancy and
Partition, sec. 470; Edwards v. Dykoman, 95 Ind. 509; Partridge v.
Luce, 36 Me. 16; Sears v. Hyer, 1 Paige, 483; Coble v, Clapp, 1 Jones
Eq. 173; Welty v. Euffner, 9 Pa. St. 224; Baird v. Corvvin, 17 Pa. St.
466.
2. Husbands or Wives of Parties.— If a married woman is an
owner of an undivided moiety of the property, and, as such, is a
party to the suit for partition, her husband, whore the common law
prevails, has a life estate in the property, and is, therefore, a neces-
sary party if such interest is sought to be affected, and a judg-
ment to which he is not a party cannot affect his interest: Freeman
on Cotenancy and Partitions, sec. 477; Ballard v. Johns, SO Ala. 32;
Foster v. Dungan, 87 Ohio, 106, 31 Am. Dec. 432; Pillsbury v. Dugan,
D Ohio, 120, 34 Am. Dec. 427. On the other hand, one of the co-
tenants may be a married man or the successor in interest of a mar-
ried man, whose wife has an inchoate right of dower in his moiety.
Where such is the case, this right does not prevent the partition
of the property, either voluntary or compulsory. As a result of the
partition ♦be right becomes attached to the part set off to be held
in severalty to tlie husband or his grantee holding the moiety sub-
ioct to this ri^ht of dower: Freeman on Cotenancy and Partition,
sees. 411, 4.''i2. In the absence of some statute to the contrary, a
wife h. vying an inchoate right of dower in the premises which she
holds KuV)or(linate to the right of the cotenants to have them par-
titioned is not a necessary party to a suit in partition, and, hence,
though not made a party, is bo'.md by a judgment therein: Leonard
v. Motley, 75 Me. 418; Motley v. Blake, 12 Mass. 280; Huntington
March, 1904.] Cartee v. White. 8G7
V. Huntington, 9 Civ. Pro. Eep. 182; Matthews v. Matthews, 1 Edw.
Ch. 567; Bradshaw v. Callaghan, 8 Johns. 563; Coles v. Coles, 15
Johns. 159, 8 Am. Dec. 231; Wilkinson v. Parish, 3 Paige, 658; Hoxsio
V. Ellis, 4 E. I. 124; McClintie v. Manns, 4 Munf. 331; Freeman on
Cotenancy and Partition, sec. 472. In such case she is ordinarily
represented by her husband and her right is merely transferred to
the property set off to him to be held in severalty. Where, however,
the property is directed to be sold for the purpose of dividing the
proceeds, it is evident that her interest must be sacrificed unless
Khe can be awarded some part of the proceeds of the sale, and no
power to make such an award seems to exist unless specially given
by statute. It is apparent, therefore, that she ought to have an op-
portunity to meet the issue as to the necessity of the sale for the
purpose of accomplishing an equitable partition. Perhaps where her
husband has made a convej'ance of her interest in the property and
is, therefore, not a party to the suit, the judgment therein does not
bind her nor deprive her of the right to assert her claim to dower
upon his subsequent death: Verry v. Kobinson, 25 Ind. 19, 87 Am.
Dec. 346. Unless an exception may be regarded as established by
the decision last cited, a wife having an inchoate right of dower
is bound by a partition by sale as well as by a partition by metes
and bounds, though not a party to the suit: Davis v. Lang, 153 111. 175,
38 N. E. 635; Haggertv v. Wagner, 148 Ind. 625, 48 N. E. 366, 39 L. E.
A. 384; Williams v. Westcott, 77 Iowa, 332, 14 Am. St. Eep. 287, 42
N. W. 314; Warren v. Twilley, 10 Md. 39; Lee v. LindcU, 22 Mo. 202,
64 Am. Dec. 262; Sire v. St. Louis, 22 Mo. 206; Matthews v. Matthews,
1 Edw. Ch. 567; Van Gelder v. Post, 2 Edw. Ch. 577; Jackson v. Ed-
wards, 7 Paige, 391; Weaver v. Gregg, 6 Ohio St. 547, 67 Am. Dec. 355;
Holley V. Glover, 36 S. C. 404, 31 Am. St. Eep. 883, 15 S. E. 6'05,
16 L. E. A. 776; contra, Eoyston v. Eoyston, 21 Ga. 172; Greiuer
v. Klein, 28 Mich. 17; Green v. Putnam, 1 Barb. 506; Wilkinson v.
Parish, 3 Paige, 658. Those courts denying that a wife is barred
of her right of dower by a sale in partition ordovod in a proceeding
to which she is not a party do not doubt that if made a party sho
is bound thereby: Jackson v. Edwards, 7 Paige, 386, 22 Wend. 498;
Jordan v. Van Epps, 19 Hun, 526. If the premises sought to bo
partitioned are claimed as a homestead, the wife of the claimant is
a necessary party, and in her absence a judgment purporting to par-
tition them cannot be binding upon her: De Uprey v. De Uprc}-, 27
Gal. 332, 87 Am. Dec. 81.
3. Encumbrancers. — If an encumbrance or lion exists against anj'
of the cotenants, the effect of the partition is to transfer it to the
lot set off to him to be held in severalty. Ilcnee, an encunibruncer
is not a necessary party to a suit in partition: Freeman on Co-
tenancy and Partition, sec. 478. This rule does not, perhaps, neccs-
earily result in the further rule that when not made a party he is
BG8 American State Eeports, Vol. 101. [N". C.
"bound by the final judgment. It may be that the part set aside to
be held in severalty to which his lien is sought to be confined is of
much less value than was the moiety to which it attached in its in-
ception. In such an event it would appear to be reasonable that ho
should be allowed to attack the partition in some mode for the pur-
pose of rebutting the presumption that it had not operated in-
equitably upon him and of obtaining some adequate relief in the
event of his success in his attack: Colton v. Smith, 11 Pick. 314,
22 Am. Dec. 375; Monroe v. Luke, 19 Pick. 40; Bradley v. Fuller,
23 Pick. 4. But even where a sale of the property is sought for
the purpose of partitioning it, encumbrancers are not, in the absence
of some statute to that effect, necessary parties to the suit: Free-
man on Cotenancy and Partition, sec. 479; Inman v. Prout, 90 Ala.
362, 7 South. 842; Thurston v, Minke, 32 Md. 574; Owsley v. Smith,
14 Mo. 155; Matter of Harding, 3 Ired. (25 N. C.) 322. The rea-
sons given for these decisions, namely, that encumbrancers are not
affected by a sale, imply that they are not prejudiced by the judg-
ment and may, notwithstanding, enforce their liens in some man-
ner, unless paid from the proceeds of the sale or otherwise. In many,
and perhaps all, of the states statutes have been enacted pro-
viding for the making of encumbrancers parties (Freeman on Co-
tenancy and Partition, sec. 479; Kingsbury v. Buckncr, 70 111. 514;
Metcalf V. Iloopingardner, 45 Iowa, 510; Eherts v. Fisher, 44 Mich.
551, 7 N. W. 211; Ilarbeson v. Sanford, 90 Mo. 477, 3 S. W. 20;
Whitton v. Whitton, 36 N. 11. 127, 75 Am. Dec. 163), and where
such is the case, they are dovibtless not bound by a judgment unless
made parties, and, on the other hand, if made parties and served
with process, must present their claims to the consideration of the
court, and are bound by its deoision refusing to recognize or provide
for thfm: Barnard v. Ondcrdonk, 98 N. Y. 164.
4. Persons not in Esse, When and. How Bound by. — Persons not
in being when judgments in partition are rendered may untjuestion-
ably be bound l)y them, and this without any publication of no-
tice to bring in unknown owners. We need not proceed to con-
sider precisely what persons must be before the court nor what
proceedings must be taken to bind persons not yet in being. It is
sufficient for our present purpose to state that there is little, if any,
dissent from the proposition that persons not in esse may be bound
by judicial proceedings taken against others who, in conten'.plation
of law, represent them: Freeman on Judgments, sec. 306; Freeman
on Cotenancy and Partition, stc. 482; Gavin v. Curtin, 171 III. 640,
49 K E. .523, 40 L. R. A. 776; Loring v. Ilildreth, 170 Mass. 328,
64 Am. St. Hep. 301, 49 N. E. 652, 40 L. K. A. 127; Dunham v. Dore-
mus, 55 N. J. Eq. 511, 37 Atl. 62; Kent v. Church of St. Michael,
136 N. Y. 10, 32 Am. St. Rep. 093, 32 N. E. 704, 18 L. R. A. 331;
Goebel v. Iflla, 48 Hun, 21; Irwin v. Clark, 98 N. C. 437, 4 S. E. 30;
March, 1904.] Carter v. Whitk. 869
Eidley v. Halliday, 106 Tenn, 607, 82 Am. St. Eep. 902, 61 S. W.
1025, 53 L. E. A. 477; Harrison v. Walton, 95 Va. 721, 64 Am. St.
Eep. 830, 30 S. E. 372, 41 L. E. A. 703, and this rule is as applicable
to proceedings for partition as to other suits: Mayer v. Hover, 81
Ga. 308, 7 S. E, 562; Eeinders v, Koppelmann, 68 Mo. 482, 30 Am.
Eep. 802; Mead v. Mitchell, 17 N. Y. 210, 72 Am. Dec. 455; Clemens
V, Clemens, 37 N. Y. 59; Freeman v. Freeman, 9 Heisk. 301; Carneal
V. Lynch, 91 Va. 114, 50 Am, St. Eep. 819, 20 S. E. 959. But in
order to bind the interests of persons not in esse the proceedings
must be adapted to that purpose. If no mention is made of such in-
terests, and the pleadings and judgment are founded upon the
theory that the persons in being before the court are the only per-
sons having any estates or interests in the property, then no in-
terests are affected except those vested in the parties before the
court. Whenever it is sought to bind the interests of persons not
then in being, the judgment must be one which "provides for and
protects such interests by substituting the fund derived from the
sale of this land in place of the land, and preserving it to the ex-
tent necessary to satisfy such interests as they arise": Barnes v.
Luther, 77 Hun, 234, 28 N, Y. Supp. 400; Monarque v. Monarque,
80 N. Y. 326.
5. Child en Ventre sa Mere. — Some doubt may arise as to when
a child becomes in esse so as not to be bound by a judgment against
its parents or others ordinarily authorized to represent the interests
of persons not in being. For some purposes a child must be treated
as in being from the moment of its conception, provided it is sub-
sequently born alive. A petition in partition alleging that the prop-
erty in question had belonged to J. M. G., who had died leaving
one child and heir, and that it is believed there is another en ventre
6a mere, does not show such a legal existence of an unborn child
as to give the court jurisdiction to order a sale or division between
it and the other child named in the petition: Gillespie v. Nabors,
59 Ala. 441, 31 Am. Eep. 20. This does not necessarily imply that
the interests of a child en ventre sa mere may not be cut off by a
partition had before its birth. In Illinois, it has been said that
such cannot be the case (but the suit was not in partition) where
its title on its birth was not derived from or under any party to
the suit: Detrick v. Migatt, 19 111. 146, 68 Am. Dec. 584. In South
Carolina, the courts at one time declined to proceed with a suit to
partition the property of a decedent until twelve months after his
death, so as to avoid the possiliility of entering a judgment which
might conflict with the title of a subsequently born heir, and after
this practice was discontinued, it was held that a child en ventre
sa mere must be regarded as a person in being who could not be
bound by a judgment in partition to which he was not a party: Pear-
son V. Carlton, 18 S. C. 47. It is believed, however, that this rule
870 American State Eeports^ Vol. 101. [K C.
cannot prevail, and that such a child must be regarded as not in
being for the purpose of the suit and as being represented hy the
parties before the court, if it has before it all who, by the facts
then known, appear to have any interest in the property: Knotts
V. Stearns, 91 U. S. 638.
6. Holders of Contingent Interests. — "Where estates are dependent
on a contingency and persons are in being in whom such estates may
vest on the happening of the contingency in their lifetime, it is ob-
vious that no part of the property can be set aside to them while it
remains uncertain whether the contingency will occur, and this has
been held to be a suttieient reason for proceeding in their absence
and for holding them bound by the result of the proceeding: Thomas
V. Poole, 19 S. C, 323. The weight of authority is in opposition to
this view, and maintains that every contingent remainderman or bene-
ficiary of a trust, who, upon the happening of a known contingency,
may become entitled to the property or some interest therein, must,
if in being, be made parties to the suit. Otherwise, they are not
bound by the judgment: Moore v. Appleby, 108 N. Y. 237, 15 N.
E. 377; Miller v. Wright, 109 N. Y. 194, 16 N. E. 205; Campbell v.
Stokes, 66 Ilun, 381, 21 N. Y. Supp. 493; affirmed, 142 N. Y. 23, 36
N. E. 811; Levy v. Levy, 79 Hun, 290, 29 N. Y. Supp. 38 i, 31 Abb.
N. C. 468; Donahue v. Fackler, 21 W. Va. 124.
7. Unknown Owners. — The statutes of many of the states author-
ize the process in suits for partition to bo directed to unknown own-
ers or to all owners and claimants, known and unknown, in certain
contingencies therein designated, and to be served by the publica-
tion thereof or of some notice requiring all persons to appear and
disclose and assert their claims to the property. Wherever such
statutes exist and have been complied with, the proceeding becomes
one in rem, and is conclusive against all persons irrespective of the
charaftor or extent of their title: ]5aylis v. liusscy, 5 Oroonl. 153;
Foxcroft V. Barnes. 29 Me. 128; Cook v. Allen, 2 Mass. 467; Foster
v. Abbott, 8 AEet. .598; Cole v. Hall, 2 Hill, C27; Eogcrs v. Tucker, 7
Ohio St. 428; Nash v. CJhurch, 10 Wis. 303, 78 Am. Dec. 678; Marvin
v. Titsworth, 10 Wis. 320; Kane v. Eock Eiver C, Co., 15 AVis. 179.
II. The Issues or Questions Settled by the Partition.
a. Issues Involved and Determined at the Common Law. — Tho
]irin<iple cnnt rolliiitr the effect as res judicata of a judgment or de-
cree in partition is precisely the same as that controlling other judg-
mi'iits or <Jccrct'S, name'y, tlio issues presented and necessarily in-
volved are conclusively determined and settled (Foxcroft v. Barnes,
29 Me. 128; Flaeg v. Tluir.ston, 11 Pick. 431; Burghardt v. Van
Deusen, 4 Allen, :j7.j; Dixon v. Warters, 8 Jones (53 N. C. ), 450; Ilerr
V. Ilerr, 5 Pa. 42^, 47 Am. Dec. 416), while issues not so presented
and involved cannot be doterniined or settled. At common law, an
March, 1904.] Cartek v. White. 871
action in partition was a possessory action, and the resulting judg-
ment had no greater effect than judgments in other possessory ac-
tions relating to real property: Avery v. Akins, 74 Ind. 284; Utter-
bach V. Terhune, 75 Ind. 363; Fleenor v. Driscoll, 97 Ind. 27; Pierce
V. Oliver, 13 Mass. 212; Nash v. Cutler, 16 Pick. 500; Eichman v.
Baldwin, 1 Zab. 398; Goundie v. Northanoton W. Co., 7 Pa. St. 238;
Nicely v. Boyles, 4 Humph. 777, 40 Am. Dec. 638-; Whitlock v. Hale,
10 Humph. 64; Mallet v. Foxcroft, 1 Story (C. C), 475, Fed. Gas.
No. 8989. A petition for partition necessarily tenders an issue
whether the plaintiff and the defendant hold the property described
therein as cotenants, and if such issue is confessed by the defendants,
and, whether confessed or not, is established by the judgment of the
court finding the co-ownership and directing partition in accordance
therewith, and by a final judgment in which a partition so made is
declared effectual, none of the parties can subsequently deny the
existence of such holding or that they were not the cotenants thereof
as found by the interlocutory judgment: Oliver v. Montgomery, 39
Iowa, 601; Burghardt v. Van Deusen, 4 Allen, 374; Edson v. Munsell,
12 Allen, 600; Cole v. Hall, 2 Hill, 627. Nor have we been able to
discover anv decision holding that either of the parties can afterward
maintain that, though there was a possession as co-owners, he held
a title in severalty, or, if not in severalty, that he had some greater
interest assertible therein than that affirmed by the judgment in parti-
tion.
b. Issues or Questions Settled in Statutory Proceedings for Parti-
tion.— Very generally statutes have been enacted in the several states
by which proceedings in partition have been broadened so as to in-
volve questions of title and various other questions, and where such
is the case, the effect of the final judgment is necessarily extended so
as to harmonize with, and accomplish, the purposes of the statute.
Hence, the effect in each state of a final judgment in partition must bo
determined by inquiring what were the issues which the parties pre-
sented and were authorized to present under tlio statute then in force.
For all issues so presented, and determined, either expressly or by
necessary implication, are conclusively and finally settled by tlie judg-
ment. Thus, if, as in West Virginia, the statute authorizes a court
of equity in a partition case to pass on all nucstions of law touching
the legal title of anyone claiming to share in the jKirtitidU to the in-
terest he claims, if his interest be such as, if valid, will make him a
co-owner in the common sul)jeet with the plaintiff as holding under
the same right or title under which the partition is to bo made, tlio
judgment of the court, while it must be conclusive as to the questions
upon which it is thus authorized to pass, cannot affect a stranger
claiming under an adverse title, nor can it be made to involve a de-
termination of such title by bringing him in as a party to the suit:
Davis V. Settle, 43 W. Va. 17, 26 S. E. 557. If, by the statutes of
872 American State Reports, Vol, 101. [N. C.
the state, partition is regarded solely as a proceeding in law, the judg-
ment therein cannot afifect or be conclusive upon any equitable title
held by anyone of the parties: Greenup v. Sewell, 18 111. 53. The
general policy of the American statutes, especially those of a com-
paratively recent date, is to permit the parties in proceedings for
partition to present and have determined every material question
relating to the title, so that, as the result of the proceeding, each per-
son having an allotment made to him, and each purchaser acquiring
title under a decree of sale, may rest assured that he has acquired
the title and interest of every person who has been before the court.
All issues may be presented and determined which are necessary to
the accomplishment of this result, and the determination, when made,
is final and conclusive, and none of t'he parties can maintain any
subsequent action or proceeding inconsistent with the determination
thus made: Irvin v. Buckles, 14& Ind. 389, 47 N. E. 822; Finley v.
Cathcart, 119 Ind. 470, 63 Am. St. Kep. 292, 4S N. E. 586; Bobb v.
Graham, 89 Mo. 200, 1 S. W. 90; Lindell R. E. Co. v. Lindell, 142 Mo.
61, 43 S. W. 368; Whittemore v. Shaw, 8 N. H. 397; Clapp v. Bromag-
ham, 9 Cow. 530; Butler v. Butler, 58 N. Y. Supp. 1094, 41 App. Div.
477; Morrill v. Morrill, 20 Or. 96, 23 Am. St. Eep. 95, 25 Pac. 362, 11
L. E. A. 155; Eeese v. Holmes, 5 Eich. Eq. 540; Edgerton v. Muse,
Dud. Eq. 179. Even in the states where this rule confessedly pre-
vails, courts have inadvertently, and without giving proper attention
to what they were saying, employed language appropriate only to
partition at the common law, as where they have stated that: "It
is well settled that a decree or judgment in partition has no other
efTect than to sever the unity of possession, and does not vest in either
of the cotenants any new or additional title": "Wade v. Deray, 50
Cal. 380; Mound City etc. Assn. v. Phillip, 64 Cal. 495, 2 Pac. 270;
Christy v. Spring Valley W. W., 68 Cal. 75, 8 Pac. 849; Konney v.
Phillipy, 91 Ind. 511. This, if true at all, can only be so when, from
t'he state of the issues, it is clear tliat no question was presented for
consideration, the decision of which might operate to create some non-
title. To illustrate, it may happen that the plaintiff and certain
other persons alleged to be cotenants had no title whatever to the
property, and that another person made a party defendant was the
owner thereof in fee by an adverse title, and, nevertheless, either
thronijh the failure to present his claim or from some error of law
or fact on the part of the court, such claim, tliough presented, was
adjudged to be unfounded, either in express terms or by implication,
by a judgment declaring the property to belong to, and requiring the
partition to be made among, the other parties. If so, then for all
practical purposes, the result of the proceeding is that the title which,
before its cnminencement was vested in one person, has by the jud;^-
ment become vested in others, for, as against them, he who was the
true owner has become estopped from asserting his ownership, and
tiicy to whom the property was awarded in partition may thereafter
March, 1904.] Carter v. White. 873
hold it as against his title: Morehout v. Higuera, 32 Cal. 290; De La
"Vega V. League, 64 Tex. 217; Kromer v. Friday, 10 Wash. 621, 39
Pac. 229, 32 L. K. A. 671.
Doubtless, courts may not at all times agree as to whether the is-
sues in a suit for partition were such that the effect of the judgment
must be restricted to the common-law rule. If the complaint alleges
that the plaintiff and certain designated defendants are the owners
of the property as tenants in common, and that certain other per-
sons, also made defendants, make some claim of title to it, this is
equivalent to alleging that the latter have no title, and they must
meet the issue thus presented, and a judgment awarding the whole
of the property to others is a conclusive and final determination that
only they have any title. Various incidental questions may be pre-
sented in suits for partition, such as that some of the cotenants have
made expenditures on account of the common property for which
they are entitled to be compensated either in money or by having
set aside to them the part on which such expenditures were made. If
any claim of this character is made in the pleadings, the judgment
finally entered must be conclusive upon it; but what is the effect of
a final judgment when a claim of this character is not presented by
the pleadings, and hence, apparently not subjected to the considera-
tion of fhe court? "With respect to any claim for owelty, this is
necessarily precluded from any further consideration by the final
judgment, for the division made among the cotenants by it neces-
sarily affirms that the shares allotted to each is equivalent in value
to his own interest in the property, and to permit him to subse-
quently prosecute any claim, on the ground that the partition was
unequal, would be to suffer a relitigation of the question necessarily
determined against him by the judgment: Burger v. Beste, 98 Mich.
156, 57 N. W. 99. It is not clear that a claim for improvements
must be presented in a suit for partition, but as it is a material ques-
tion and might affect the mode, and perhaps the equality of the
partition, we believe that a cotenant who does not present this ques-
tion cannot afterward claim compensation in any independent suit:
Spitts v. Wells, 18 Mo. 468. If any of the defendants has a lien on
the property, he should present it. If the decision is in his favor, the
existence of the lien is established and cannot be subsequently con-
troverted by any of the parties: Lloyd v. Davis, 123 Cal. 34S, 55
Pac. 1003. If, on the other hand, the decision is against the lien, either
expressly or by requiring such a disposition of the property as neces-
sarily ignores it, the claimant cannot have any redress unless by ap-
peal where the lien is recognized, it cannot be afterward asserted
except subject to the rights declared in the judgment of partition.
If the property is sold, satisfaction of the lien must be sought out
of the proceeds of the sale (Thompson v. Frew, 107 III. 478; Mac-
grcgor V. Alalarkey, 96 111. App. 421; Arnold v. Butterbaugh, 92 Ind.
403; Finley v. Babin, 12 La. Ann. 236), and if the property is alIotte<l
874 American State Eeports, Vol, 101. [N. C.
to the various tenants in common, the lien can be asserted only against
the allotment made to the person against whose moiety it attached
when created: Rochester L. & B. Co, v. Morse, 181 111, 64, 54 N, E.
628; Diamond v. Diamond, 27 La, Ann. 125.
m. The Effect Where the Title, or Some Part of It, is not Bound
by the Judgment.
a. Of the Right to Contribution. — Confessedly, neither a judgment
in partition nor any other judicial proceeding can bind persons who,
in contemplation of law, were not parties to it. It follows that a
stranger to the suit remains entitled to assert his rights to the same
extent as if it had not been instituted. As between one another,
the different parties to the suit will not be permitted to allege that
any of them held any title capable of being asserted therein in addi-
tion to that there found in him, but either may, for some purposes,
show that there existed a third party not bound by the judgment, and
that, because of this fact, it has not vested perfect title in the whole
or in some part of the property, and the other parties may be required
to do what in equity ought to be done in consideration of this fact.
Thus, a title not affected by the partition may extend to some only
of the allotments made, in which event it will appear that the per-
sons receiving such allotments hive acquired no title, or a title less
in extent than tliat which they rightfully expected to receive, while
the title of the other allottees is perfect. By the common law, and
Englis'h statutes, enacted so early that they may be regarded in this
country as a part of it, every cotenant who, after compulsory parti-
tion, was evicted by title paramount, had the right of recompense
for the part lost, which right, however, was not available to his
grantees (.Jones v. Bigstaff, 95 Ky. 395, 44 Am. St. Eep. 245, 25 S.
W. 8S9; Dugan v. Ilollins, 4 Md. Ch. 147; Marvin v. Marvin, 52 How.
Pr. 97; Nixon v. Lindsay, 2 Jones Eq. 230; Walker v. Hall, 15 Ohio
St. 3C2, 8G Air. Dec. 482; Ketchiu v. Patrick, 32 S. C. 443, 11 S. E.
301; Sawyers v. Caton, 8 Humph. 25G, 47 Am. Dec. GOS; Urigshy v.
Peak, 68 Tex. 235, 2 Am. St. Eep. 487, 4 S. W. 474; Harris v. Hicks
(Tex. Civ. App.), 49 S. W. 110;Western v. Skiles, 35 Fed. G74), but
was said to be enforceable against alienees of the persons the title
to whose allotment was perfect as well as against such persons them-
bi-ues: Sawyers v. Cator, 8 Humph. 25G, 47 Am. Dec. GOS-.
b. The Effect of the Subsequent Acquisition of Title Paramount
by One of the Parties. — Where title paramount exists, a party to the
partition, instead of seeking imlemnity by an action for contribu-
tion, may acquire such title and undertake to assert it against his
former cotenants or their alienees. The person who held such title
when the judgment in partition was rendered was certainly not bound
by it, because not a party thereto, nor can any alienee of his be
bound by the judgment under the rules of res judicata, for it must
March, 1904.] Carter v. White. 875
be conceded that, by those rules, a party to judicial proceeding is
not estopped to assert rights and titles subsequently acquired: Free-
man on Judgments, sees. 302, 329. This rule applies, as we have
Bhown, to suits for partition, for, unless the parties to those suits
were permitted to show, notwithstanding the judgment therein, that
there were adverse paramount titles not affected thereby, it would
be impossible for them to maintain suits for contribution on the
ground that the title of the allotment made to them had wholly or
partly failed. If, therefore, a party to a partition suit subsequently
acquiring paramount title is estopped to assert it, this is not because
of anything which has been adjudged or determined in the suit,
but for the reason that the judgment confirming the allotments in par-
tition must be taken to operate as a conveyance to each of the allot-
tees from all the others, carrying with it an implied warranty of title.
"Where partition is made voluntarily by conveyance executed by the
supposed tenants in common, it is, in some states, affirmed (Freeman
on Cotenancy and Partition, see. 410; Tewksbury v. Provizzo, 12 Gal.
25; Eogers v. Turley, 4 Bibb, 356; Jones v. Bigstaff, 95 Ky. 395, 44
Am. St. Eep. 425, 25 S. W. 889; Venable v. Beauchamp, 3 Dana, 321.
28 Am. Dec. 74), and in others denied (Freeman on Cotenancy and
Partition, so.',. 409; Doane v. Willcutt, 5 Gray, 328, 66 Am. Dec. 369.
Picot V. Page, 26 Mo. 422; Carpenter v. Schermerhom, 2 Barb. Ch.
322; Dawson v. Lawrence, 13 Ohio, 546, 42 Am, Dec. 210), that an im-
plied warranty exists as in cases of compulsory partition, with the
weight of authority and reasoij slightly inclining tc the latter view.
Where the former rule prevails, it may well be clr.imed that a final
judgment in partition must operate as fully as might a conveyance
of the same date executed by all the parties to the action, and if
such a conveyance would have carried the title involved in the sub-
sequent controversy, so must such a judgment. Upon reasoning like
this, it was held that a title acquired by a party to a suit in parti-
tion during its pendency and after his answer was filed therein, but
before the rendition of the judgment, though, strictly speaking, an
after-acquired title not capable of being asserted in the suit under
the pleadings as they stood when judgment was pronounced, never-
theless vested in the allottees, because it would so have vested had
all the parties executed a conveyance on the date on which the judg-
ment was rendered: Christy v. Spring Valley W. W., 68 Cal. 73,
8 Pac. 849. In this case, it will be observed, it was not necessary
to affirm that the judgment carried an after-acquired title on the
ground of the implied warranty, for a conveyance executed at the
date of the judgment, though by quitclaim only, would have trans-
ferred to the allottees the title in question.
The statute of Henry VIII, which was understood to extend to
other cotenants a right theretofore existing in favor of a cojiarcener
who, after partition, was evicted under title paramount, provided
876 American State Eeports, Vol. 101. [N. C.
"that every of the said joint tenants or tenants in common, and their
heirs, after such partition made, shall and may have aid of the
others, or of their 'heirs, to the intent to deraign the warranty para-
mount, and to recover for the rate as is used between coparceners
after partition made by the order of the common law." We see noth-
ing on the face of this statute implying, strictly speaking, any war-
ranty in favor of one cotenant and against the others, but merely a
recognition of the right to recover contribution when an allottee
lost liis allotment by title paramount, as against other allottees who,
in the allotments to them, had had the benefit of his moiety in the
part of the premises the title to which had not failed. The result of
fhe proceeding authorized by the statute was to place the parties as
nearly as possible in the position in which they would have been
placed by the partition had it then been known that their title did
not extend to the whole of the premises. Beyond this there was no
warranty of title and no right recognized or created by virtue of
which any of the parties could maintain any action against another
on the establishment of title paramount in a stranger to the action to
the whole of the property. Where, under such circumstances, one
of the allottees or his successor in interest acquires title paramount,
it may be that he ought to be held to have acquired it for the benefit
of t'he others if they choose to participate in the cost of the acquisi-
tion, as would be the case had it been acquired by any of the co-
tenants before partition: Freeman on Cotenancy and Partition, sees.
154-156. If it is equitable to permit a cotenant before partition to
acquire and assort a paramount title unless his cotenants will assume
their share of the expense of the acquisition, it is equally equitable
to permit an allottee, after partition, to protect his title by acquir-
ing title paramount and asserting it until such time as the other
parties in interest make, or offer to make, what must be regarded as
an equitable contribution. This view of the question has not, so far
as we are aware, been presented to or considered by the courts.
After ourselves recousidering the subject, we reach the conclusion
that the weight, both of reason and of authority, notwithstanding the
decision in the principal case, does not estop a party to a partition
suit from subsequently acquiring title from one not a party to such
suit and enforcing it against the other parties and their successors
in interest: Avery v. Akins, 74 Ind. 283; Kenney v. Phillipy, 91 Ind.
511; Richardson v. Cambridge, 2 Allen, 118, 79 Am. Dec. 767; Tapley
v. McPiko, 50 Mo. 592; Woodbridge v. Banning, 14 Ohio St. 330;
contra. Doe ex dem. Short v. Prettyman, 1 lloust. (Del.) 334; Ven-
able V. Beauchamp. 3 Dana, 325, 28 Am. Dec. 84; Mills v. Withering-
ton, 2 Dev. & B. 433; Carter v. White, 134 N. C. 466, ante, p. 853, 46
y. E. 9S3. Necessarily this must be true when a party to the action
has some inchoate right or interest which cannot, under the rule of
practice there prevailing, be asserted in the suit or recognized and
provided for in the judgment, as where one of the parties 'had an in-
March, 1904.] Eodman v. Robinson. 877
choate right of dower which subsequently to the partition became
perfect bv the death of her husband, and which by the law in force
is not destroyed by the judgment. In such a case she remains entitled
to dower, which may afterward be assigned, contribution being de-
creed in favor of the parties who suffer loss by reason of the assign-
ment: Walker v. Hall, 15 Ohio St. 385, 86 Am, Dec. 485.
RODMAN V. ROBINSOX.
[134 N. C, 503, 47 S. E. 19.]
SPECIFIC PERFOEMANCE— Contract to Convey— Dower
Eights. — A husband cannot avoid a decree for the specific perform-
ance of his contract to convey land to which his wife is not a party,
on the ground that she is entitled to dower in the land. (p. 878.)
SUNDAY CONTEACTS.— A contract for the conveyance of
land entered on Sunday is valid and not opposed to public policy,
(p. 884.)
CONTEACTS to Convey Land — Breach of Election of Eeme-
dies. — Upon a breach of a contract to convey land, the purchaser
may sue for specific performance, and is not bound to bring an action
at law for damages, (p. 886.)
SPECIFIC PEEFOEMANCE— Contract to Convey I.aiid.— If
no Fraud or Mistake is alleged, the fact that the vendor made a bad
trade does not release him from specific performance of his contract
to convey land. (p. 886.)
SPECIFIC PEEFOEMANCE— Contract to Convey.— Descrip-
tion of the land by metes and bounds is suliicient in a suit for the
specific performance of a contract to convey land. (p. 886.)
Connor & Connor and E. K. Bryan, for the pUiintilTs.
J. D. Kerr, F. R. Cooper and Shepherd & Shepherd, for the
defendant
s«4 CLARK, C. J. On Sunday, Septeniher 14, 1902, the de-
fendant, v.-ho then was and still is the owner in fee and in pos-
session of the land described in the complaint, contracted in
writing, dated September 13, 1903, with plaintiff Rodman to
sell him said land, possession to be given the 1st of January,
1903, and deed to be delivered the 1st of April, 1903, at which
time the purchase money was to be paid. In December, 1902,
defendant, informed Rodman that he would not deliver posses-
sion nor accept the purchase money and repudiated the con-
tract, nevertheless Rodman did tender the four thousand two
878 American State Reports, Vol. 101. [I^. C.
hundred dollars, the agreed price, in money on the 1st of April,
1903, or as soon thereafter as defendant could be found, and
demanded the deed, but defendant refused to accept the money
or deliver the deed. The contract is admitted in the answer,
and judgment for specific performance was rendered upon the
pleadings and defendant appealed.
The first assignment of error is : "Because it appears from
tlie answer that defendant was at the time of signing said
alleged contract to convey a married man, and his wife is still
living and entitled to dower and homestead right in said land,
and the judgment docs not sufficiently guard and protect such
right." The wife has an inchoate right of dower, but she has
no present right to the property nor to its possession, nor any
dominion over it, she has only a right therein ^^^ contingent
iipon surviving her husband, which may not happen: Gatewood
v. Tomlinson, 113 X. C. 312, 18 S. E. 318. The Code, section
2103, expressly provides tliat upon the death of the husband
the widow shall be entitled to dower. Besides, this is an objec-
tion which the plaintiff alone could make. The wife is not a
party to tliis action and tlic decree in no wise affects her con-
tingent interest. Having taken the contract without the wife's
signature, the plaintiff could not obtain a decree compelling
her to join in the deed: Farthing v. Eochelle, 131 N. C. 5G3,
43 S. E. 1; Fortune v. Watkins, 94 N. C. 304. The Code, sec-
tion 210G, recognizes the right of the husband to alien witliout
the joinder of the wife, the conveyance having no eiTect ujion
tl'.e wife's contingent right of dower: Fleming v. Graham, 110
X. C. 374, 14 S. E. 922; Scott v. Lane, 109 X. C. 154, 13 S.
E. 772; Hughes v. Hodges, 102 X. C. 23G, 9 S. E. 437; ^layho
V. Gotten, G9 X. C. 289. As to tlie homestoad right, it was not
necessary for the wife to join in the contract, because tlie an-
swer admits that no homestead had been allotted in this land:
^laylio V. Gotten, G9 X. C. 289, approved, Joyner v. Sugg, 132
X. G. 589, 44 S. E. 122. Besides, tlie answer further admits
the solvency of the defendant, that there is no judgment dofk-
eted against him, and that he owns other lands more than suffi-
cient in value for the allotment of the homestead: Hughes v.
Ho.l-cs, 102 X. G. 23G, 9 S. E. 43G. The conveyance or con-
tract is valid, subject to the contingent riglit of dower: Gate-
wood V. Tomlinson, 113 X. G. 312. 18 S. E. 318; Scott v. Lane,
109 X. G. 154, 13 S. E. 772. 'J'lie wife is not a party to this
action and not estopjicd by the judgment if the above admis-
sions should prove untrue. Tlie wife not being a party, the
March, 1904.] Rodman v. Robinson. 879
exception that her "rights are not protected by the decree" has
no place here.
The second assignment of error is: "Because the contract to
convey was entered into and signed upon Sunday, and no con-
sideration being passed, and the defendant having ^^^ repu-
diated the contract the week following, said contract is not en-
forceable and the judgment should have declared said contract
to be void." The promise to pay four thousand two hundred
dollars purchase money was a sufficient consideration: Puffer
V. Lucas, 101 N, C. 284, 7 S. E. 734; Worthy v. Brady, 91 N.
C. 265, 108 N. C. 440, 12 S. E. 1034; Clark on Contracts, 149,
169; 9 Cyc. 323. The contract having been accepted by plain-
tiff the attempted repudiation thereof by the defendant with-
out the consent of the plaintiff has no effect : Paddock v. Daven-
port, 107 N. C. 710, 12 S. E. 464; Ryan v. United States, 136
U. S. 68, 10 Sup. Ct. Rep. 913, 34 K ed. 447. So this excep-
tion hinges upon the question whether the contract is invalid
because entered into and signed on Sunday.
This point has been settled in this state by repeated decisions.
A contract entered into on Sunday is not invalid at common
law: Clark on Contracts, 393; Drury v. De Fontaine, 1 Taunt.
131 (in which it was held that a vendor could recover the price
of a horse sold on Sunday) ; Benjamin on Sales, sec. 552. Our
statute (Code, section 3782) is copied almost verbatim from the
first part of the statute, 29 Charles II, chapter 17 (1678). The
other part forbidding service of process on Sunday is omitted
from our statute, which merely provides that "on the Lord's
Day, commonly called Sunday, no tradesman, artificer, planter,
laborer or other person shall .... do or exercise any labor,
business or work of his ordinary calling, .... iipon pain that
every person so offending .... sliall forfeit and jiay one dol-
lar." This part was construed by Lord ]\Iansfield in Drury v.
De Fontaine, 1 Taunt. 131. not to invalidate a sale of a horse
on Sunday when the sale was not a part of the vendor's ordinary
colling. This statute is the foundation of nearly all tlio Sunday
legislation in this country.
It is not alleged in the answer that tliis contract was made
and entered into by either the plaintiff Rodman or tlie de-
fendant ^^'^ Robinson in pursuance by either of his ordinary
calling.
In MelviTL v. Easley, 52 N. C. 356, the court said: "The
statute in its operation is confined to manual, visible or noisy
labor, such as is calculated to disturb other people, for ex-
880 American State Reports, Vol. lOl. [N. C.
ample, keeping open shop or working at a blacksmith's anvil.
The legislature has power to prohibit labor of this kind on
Sunday on the ground of public decency But when it
goes further and .... prohibits labor which is done in private
the power is exceeded, and the statute is void." In that case
it was held that selling a horse on Sunday was not forbidden by
the statute, as dealing in horses was not Melvin's "ordinary
calling." Again, it is said in State v. Eicketts, 74 N. C. 192 :
"In this state every act may lawfully be done on Sunday which
may lawfully be done on any other day, unless there is some
statute forbidding it to be done on that day." This has been
cited and approved in White v. Morris, 107 N". C. 99, 12 S. E.
80 (in which Davis, J., calls attention to the fact that prior to
tlie code civil process could not legally be served on Sunday,
but now the restriction applies only to forbid arrests in civil
actions on that day), approved also in State v. Penley, 107 N.
C. 808, 12 S. E. 455, Ashe, J., in State v. McGimsey,^80 N. C.
377, 30 Am. Eep. 90, and State v. Howard, 82 X. C. 62G, Mer-
rwnon, C. J., in State v. :\looro, 104 N. C. 749, 10 S. E. 183,
Taylor v. Ervin, 119 X. C. 276, 25 S. E. 875— all these last
holding that it was not illegal to hold court on Sunday if the
judge deemed it necessary, though out of considerations of
propriety it ought not to be done unless necessary.
In State v. Brookbanks, 28 ^^. C. 73, Ruffin, C. J., hold that
it was not indictable to sell goods in open shop on Sunday, and
in State v. Williams, 2G X. C. 400, the court through the same
judge ludd it not indictable to work on Sunday, it not being
indictable eitlier at common law (citing ^*** Eex v. Brotherton,
1 Str. 702; llox v. Cox, ])urr. 785), or by our statute, adding
(page 400) : "It is clear tliat the making of bargains on Sun-
day was not a crime against the state, for contracts made on
lliat day are binding. ]t has often been so ruled in this state,
and after elal)oratc argument and time to advise." Covington
v. Threadgill, 88 ^,'. C. 1S9, is obiter merely, and Waters v.
Kichiiiond o\v. U. H. Co.. ]()8 X. C. 349, 12 S. E. 950. is a
coiistnution of section 10)52 of the General Statutes of South
Carolina, wliich is a part of tlie statute, 29 Charles II, which
has been omitted in our statute.
Counsel for defendant contend that Christianity is a part
of the law of the land, and lience, independent of anv statute,
the contract is invalid. If the observance of Sunday were
commanded by statute as an act of religion or worsliip, such
March, 19D4.] Eodman v. Eobinson. 881
statute would be absolutely forbidden. The founder of the
Christian religion said that his "Kingdom was not of this
world," and under our constitutions, both state and federal,
no act can be required or forbidden by statute because such
act may be in accordance with or against the religious views
of anyone. The first amendment to the federal constitu-
tion provides: "Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof," and the constitution of this state, article 1, section
26, reads: "All men have a natural and unalienable right
to worship Almighty God according to the dictates of their
own consciences, and no human authority should in any case
whatever control or interfere with the right of conscience."
If, therefore, the cessation of labor or the prohibition or per-
formance of any act were provided by statute for religious
reasons the statute could not be maintained. The Seventh
Day Baptists and some others, as well as the Hebrews, keep
Saturday and the Mahommedans obser\'e Friday. To com-
pel them or anyone else to observe Sunday for religious reasons
would be contrary to our fundamental law. Tlie ^**^ only
ground upon which "Sunday laws" can bo sustained is that
in pursuance of tlie police power the state can, and ouglit to,
require a cessation of labor upon specified days to protect tlie
masses from being worn out by incessant and unremitting toil.
If such days happen to be those upon which tlic larger part of
the people observe a cessation of toil for religious reasons, it
is not an objection but a convenience. Yet sucli statute cannot
be construed beyond its terms so as to make the signing of a
contract on Sunday invalid when the words prohibit only "labor,
business or work of one's ordinary calling."
It is incorrent to sav that ("bristianity is a part of tbo com-
mon law of the land, however it may 1)0 in 1-jigland where tliere
is a union of church and state, which is forhiddcn here. The
beautiful and divine precepts of the Xazarene ilo inlluence the
conduct of our people and individuals, and are felt in legisla-
tion and in every department of activity. They ])n)foundly
impress and shape our civilization. But it is by this inlluence
that it acts, and not because it is a part of the organic law which
expressly denies religion any ])Iace in the supervision or control
of secular affairs. As a contemporary construction of the fed-
eral constitution, it may be well to recall that one of the first
treaties of peace nuide by the United States — that widi Trip-
Am. St. Rep., Vol. 101—56
882 American State Reports^ Vol. 101. • [N. C.
oli — which was sent to the Senate with the signature of George
Washington, who had heen president of the convention which
adopted the United States constitution, began with these words :
"As the government of the United States is not in any sense
founded on the Christian religion." This treaty was rati-
fied by the Senate. If it was presumption in Uzza to put
forth his hand to stay the tottering Ark of God at the thresh-
ing floor of Chidon, it is equally forbidden under our severance
of church and state for the civil power to enforce cessation of
work upon the Lord's Day in maintenance of ^^** any religious
views in regard to its proper observance. That must be left to
the consciences of men, as they are severally influenced by their
religious instruction. Churches differ widely, as is well known,
on this subject, the views of the Roman Catholics and Presby-
terians, for instance, being divergent, and the views of other
churches differing from both.
Even if Christianity could be deemed the basis of our gov-
ernment, its own organic law must be found in the Xew Testa-
ment, and there we shall look in vain for any requirement to ob-
serve Sunday, or indeed any day. The Mai^ter's references to
the Sabbath were not in support but in derogation of the ex-
treme observance of the Mosaic day of rest indulged in by the
Pharisees. The Old Testament commanded the observance of
the Sabbath, but that was an injunction laid upon the Hebrews,
and it designated Saturday, not Sunday, as the day of rest, pre-
scribing a thoroughness of abstention from lalior which few
observe, even of the people to whom the command was given.
Sunday was first adopted by tlie Christians in lieu of Satur-
day long years after Christ, in commemoration of the Pos-
urrection. The firsts "Sunday law" was enacted in tiio year ;521
after Clirist, soon after the Emperor Constantine liad adjured
paganism, and apparently for no different reason than the Cliris-
tian oljservance of the <hiy. It is as follows: "Let all judges
and city people and all tradesmen rest upon the venerable drifv
of the Sun. But let those dwelling in the country freely and
with full liberty attend to the culture of their fields, since it
frequently happens that no other day is so fit for the sowing of
grain or the planting of vines; hence the favorable time should
not be allowed to ])ass lest the provisions of heaven be lost":
Codex, Justin, lib. 3, tit. 12.1, 3. Evidently Constantine was
still sometliing of a heathen. As late as the year 401) two
rescripts of the Emperors llonorius and Theodosius indicate
March, 1904.] Eodman v. Robinson. 883
that Christians ^^^ then still generally observed the Sabbath
(Saturday not Sunday). The curious may find these set out in
full, Codex Just., lib. 1, tit. 9, Cx. 13. Not till near the end of
the ninth century was Sunday substituted by law for Saturday
a? the day of rest by a decree of the Emperor Leo: Leo Cons.
54. The subsequent development of Sunday laws will be found
in Lewis' "Sunday Legislation." This legislation has differed
in diflPerent Christian countries and still differs, and the diver-
gence is very great even in the legislation of the states of this
Union.
The Saxon laws under Ine (about A. D. 700) forbade work-
ing on Sunday, but under Alfred (A. D. 900) and Athclstane
(A. D. 924) the prohibition w^as merely against marketing on
Sunday, and there seems to have been no statute against working
on Sunday (whatever the church may have enjoined) until the
above-cited statute, 29 Cliarles II, chapter 7 (1G78), the first
part of which is almost verbatim our statute, Code, section 3782 :
See 4 Blackstone's Commentaries, C3. Indeed, it appears from
the records of Mcrton College, Oxford, that at its manor of
Ibstone, in the latter part of the thirteenth century, contracts
with laborers provided for cessation from work on Saturdays
and holidays, but it was stipulated that work should be done in
regular course on Sunday : Thorold Rogers' Work and Wages,
c. 1. Indeed, it seems that this was usual in England till the
time of the commonwealth and the rise of the Puritans to power,
but tlie eliangc was not enacted into law till the above-cited
statute of Charles II in 1G78.
The first Simday law in this country was enacted in Virginia
in 1617 (three years before the landing at Plymouth), and
punished a failure to attend churcli on Sunday witli a fine pay-
able in tobacco. Tliis was re-enacted in 1(;33: Honning-'s Stat-
utes at Large, Va., 1G19-G0, vol. ], p. 123. Plynioudi colony
(Records, volume 11, p. 214) made it punisliable ''^'' h\ \m-
];risonmcnt in the stocks to go to sleep in church, and on Juno
10, 1G50, the same colony made it punishable bv whippino; to do
"any servile work or any such like abuse"' on the Lord's Dav.
''So any sin committed with an high liand. as the gathering of
sticks on the Sabbath day, may be punished witli death, when a
lesser punishment might serve for gathering sticks ])rivilv and
in need": Records of Massachusetts Rav, vol. 2, p. 93. Pul)-
licity did not then liave the virtue attrii)uted to it as now, liut
the reverse. Hutchinson's History of Massacliu setts, volume 1.
884 American State Reports, Vol. 101. [N. C.
page 390, says: "Divers other offenses were made capital, viz.,
profaning the Lord's Day in a careless or scornful neglect or
contempt thereof: Numbers xv: 30-36." The New Haven
Colony Records of 1653-55, page 605, contain a similar provision
that profaning the Lord's Day by "sinful servile word or unlaw-
ful sport, recreation or otherwise, whether willfully or in a care-
less neglect, shall be duly punished by fine, imprisonment, or
corporally, according to the nature and measure of such sin and
offense"; providing further, that if "the sin was proudly, pre-
sumptuously and with a high hand committed'" such person
"shall be put to death." On May 19, 16G8, after tlie union of
New Haven and Connecticut in one colony, unnecessary travel
or playing on Sunday, or keeping out of the meeting-house, was
made punishable by imprisonment in the stocks adding "and
the constables in the several plantations are hereby required
to make search for all offenders against this law and make
return thereof": Colonial Records of Connecticut 1G65-67, p.
88. Similar laws but of less severity, wore enacted in some
other provinces. "While the statutes of the several states still
differ on tlie subject of Sunday legislation, all of these enact-
ments are now l)ased upon the police power, that some rest may
be fH-iaranteed to the workers and to avoid ofTeiise l)v the noise
and tumult of traflic and labor to ^^^ tlie great majority wlio
desire a day of quiet and peace for their devotional services:
Bishop on Contracts, sec. 5:36, says: "It is al)undanlly settled
tliat a Sunday contract is good wlien it does not come in tontliet
with any statute." Wo do not deny the constitutionality of a
Sunday law based on the ])o]ice powci-, which is well settled:
Jud.-lind v. State, 78 Md. -MO, -.^S Atl. 40.5. -.^-.^ J.. R. A. :-il,
and notes. We hold that our statute does not make void the
contract here sued on. In the language of Caldwell, J., in
Swan V. Swan, 21 I'^vl. 305: "It would be downright hypoci'isy
for a court to affect to believe that the moral sense of the com-
munity would 1)0 sliocked by compelling a man to pay a note
given for an lionestdeht because it was executed on the Loi'd's
Dav." And \}\o same is true of the en forcein(>nt of anv
ceiitract wliich is not forbi(!(l(>n by statute to be made on
Sundav.
Among the authorities elsewhere which liold in accordance
witli our decisions that a iu)te or contract made on Sunday is
valid, are Barrett v. Aplin^ton. Fed. Cas. No. 1045; "More v.
Clynier, 12 :Mo. App. 11; Glover v. Cheatham, 19 Mo. App. tioG;
March, 1904.] Rodman v. Robinson. 885
Sanders v. Johnson, 29 Ga. 526 ; Dorough v. Equitable Mtg. Co.,
118 Ga. 178, 45 S. E. 22; Ray v. Cattel, 51 Ky. 532; Hazzard
V. Day, 14 Allen (Mass.), 487, 92 Am. Dec. 790; Geer v. Put-
nam, 10 Mass. 312; Kaufmann v. Hamm, 30 Mo. 388 (which
held valid a promissory note made on Sunday) ; Foster v.
Wooten, 67 Miss. 540, 7 South. 501; Horacek v. Keebler, 5
Xeh. 355; Fitzgerald v. Andrews, 15 Neb. 52, 17 N. W. 370;
Switcher v. Williams, Wright (Ohio), 754; Bloom v. Richards,
2 Ohio St. 387; Hellams v. Abercrombie, 15 S. C. 110, 40 Am.
Rep. 684 (which holds a mortgage executed on Sunday to be
valid); Mills v. Williams, 16 S. C. 593; Lucas v. Larkins, 85
Tenn. 355, 3 S. W. 647 (privy examination on Sunday valid) ;
Gibbs etc. Mfg. Co. v. Brucker, 111 U. S. 597, 4 Sup.^Ct. Rep.
572, 28 L. ed. 534; Allen v. Gardner, 7 R. I. 22; Moore v,
Murdock, 26 Cal. 514; Johnson v. Brown, ^^'^ 13 Kan. 529;
Birks V. French, 21 Kan. 238; Boynton v. Page, 13 Wend. 425;
Miller v. Roesslcr, 4 E. D. Smith, 234; Balsord v. Every, 44
Barb. 618; Merritt v. Earle, 29 N. Y. 115, 86 Am. Dec. '292;
Eberle v. Meliebach, 55 IST. Y. 682; Amis v. Kyle, 2 Yerg.
(Tenn.) 31, 24 Am. Dec. 463; Behan v. Ghio, 75^ Tex. 87, 12
S. W. 996; Schneider v. Sansom, 62 Tex. 201. 50 Am. Rep.
521; Richmond v. Moore, 107 111. 429, 47 Am. Rep. 445; Main
V. Johnson, 7 Wash. 321, 35 Pac. 67; Raines v. Watson, 2 W.
Ya. 371; Clark on Contracts, 395, and there are others to same
jiurport. There are decisions to the contrary, but tliey will be
found almost entirely in states wdiere the statute, unlike ours,
is not restricted to ''labor, business or work done in one's or-
dinary calling," but is extended in its terms so as to embrace the
prohibition of contracts of all kinds on Sunday. In such cases,
as is said in Swan v. Swan, 21 Fed. 299, "contracts made on the
Lord's Day are not void on religious or moral grounds, but upon
the familiar and established doctrine that when a statute inflicts
a penalty for doing an act — no matter what that act may be — a
court of justice will not enforce a contract made in violation of
s\ich statuLC." The execution of a will on Sunday seems to be
held valid everywhere. Tlie Pennsylvania court in 1850 was
evenly divided on the question whetlier "a marriage contract
executed on Sunday was such worldly employment or business
as was forludden on tliat day": In re Gongwcre's Estate, 14
Pa. 417, 53 Am. Dec. 554: but better advised later, in 1882 they
lield that a contract of marriage entered into on Sunday was
valid : Markley v. Kessering, 2 Pennyp. 187.
886 American State Keports, Vol, 101. [N. C.
To sum up the whole matter, the validity, in the courth, of
any act done on Sunday depends not upon religious views but
upon the statute of each particular state, and our statute only
forbidding "labor, work or business of one's ordinary calling"
does not invalidate a contrr.ct, as here, which was '^^^ not an act
done as a part of the plaintiff's usual business or calling:
Bisliop on Contracts, sec, 538, and cases cited. As was said in
State V. Ricketts, 74 N. C. 173 : "What religion and morality
jicriuit or forbid to be done on Sunday is not within our province
to decide."
The third exception is that the agreement to convey was void
because without consideration and against public policy. Both
tliese points have been disposed of: See, also. Dowdy v. White,
128 N. C. 17, 38 S. E. 129, as to mutual promises being suffi-
cient consideration, and on public policy, see note at end of
opinion in Swan v. Swan, 21 Fed. 308.
The fourth and last exception is that the decree is "for specific
performance, wliile the plaintiff at most is entitled only to dam-
ages for breach of contract." In Bryson v. Teak, 43 X. C. 310,
it is held: "In case of breach of contract of sale, the injured
party is entitled at his election to a bill for specific perform-
ance, and is not bound to bring an action at law for damages."
To same purport: Springs v. Sanders, 62 N". C. 67; Young v.
(Iriffitli, 84 X. C. 715; Hargrove v. Adcock, 111 X. C. 16G, 10
S. E. IC; Stamper v. Stamper, 121 X. C. 251, 28 S. E. 20;
Wbitted V. Fuciuay, 127 X. C. 68, 37 S. E. 141; Ilennessy v.
Wolwortb, 128 U. S. 138, 9 Sup. Ct. Eop. 109, 32 L. ed. 500.
The allegation tliat the defendant made a bad trade, there
being no fraud or mistake alleged, does not exempt liim from
specific performance: Stamper v. Stamper 121 X. C. 251, 28
S. E. 20; Wbitted v. Fuquay, 127 X, C. 68, 37 S. E. Ill ; ]\loore
V. Keed, 37 X. C. 580. If, as the defendant admits, he is liable
to damages for the difference between the contract price and
the value of the land, then he is not hurt because he would
have to ]iay the difference, and there would be no reason for a
refusal to deci-eo s[)ecilic performance.
There is no fraud or mistake as alleged. The land is de-
scribed by metes and bounds, and that is sufficient : Laws 1891,
c. 465; Carson v. Kay, 52 X. C. 609, 78 Am. »i« Dec. 2(;7;
Forteseue v. Crawfonj. ]05 X. C. 29, 10 S. E. 910; Farthing
V. liochcllc, 131 X. C. 563, 43 S. E. 1.
March, 1904.] Rodman v. Robinson. 887
The decree should have directed the defendant to make rea-
sonable effort to get his wife to sign the deed : Swepson v. John-
ston, 84 N". C. 449; \VeLlx)rn v. Sechrist, 88 N. C. 292; but
that was error against the plaintiffs, who are not appealing.
No error.
Walker, J., concurs in result.
Connor, J., having been of counsel, did not sit on the hear-
ing of this case.
Contracts Made on Sunday in matters of business, other than such
as are prohibited by statiite, are valid. A deed of trust executed
on Sunday is not void under a statute simply prohibiting work and
labor on 'that day: Koberts v. Barnes, 127 Mo. 405, 30 S. W. 113,
48 Am. St. Eep. 640, and see the cases cited in cross-reference note
thereto. For other authorities on the validity of Sunday contracts,
see Acme Elec. etc. Co. v. Van Derbeck, 127" Mich. 341, 89 Am. St.
Rep. 476, 86 N. W. 786; Cook v. Forker, 193 Pa. St. 461, 74 Am.
St. Eep. 699, 44 Atl. 560; Stewart v. Thayer, 168 Mass. 519, 60 Am.
St. Eep. 407, 47 N. E. 420; monographic note to Henry Christian
etc. Assn. v. Walton, 59 Am, St, E«p, 641-644.
CASES
IN THB
SUPEEME COURT
OF
OHIO.
HUMPHREYS v. STATE.
[70 Ohio St. 67, 70 N. B. 957.]
APPELLATE PRACTICE — State as Appellant— Appeal Bond.
If the probate court, in the settlement of a decedent 's estate, de-
cides the liability of a devise, legacy, bequest or inheritance to pay
a collateral inheritance tax as provided by statute, an appeal may
be taken from such judgment as authorized by statute, and if the
state takes such appeal, it may be done without giving an appeal
bond or filing a written notice of intention to appeal, (pp. 8S9, 890.)
INHERITANCE TAXES — Liability of Foreign Corporations
for. — Charitable societies and auxiliaries thereto, incorporated and
organized under the laws of other states are not within the provisions
of an inheritance tax statute which exempts from the payment of
such tax, gifts, bequests, devises, etc., "to or for the use of any
institution in said state for purposes of purely public charity, or
other exclusively public purposes," and if such foreign corporations
;ire entitled to receive property within the state of such statute, by
gift, bequest or devise, they are liable to such inheritance tax, al-
though some of their charitable work and enterprises are carried on
within the state, (p. 894.)
CONSTITUTIONAL LAW — Inheritance Tax— Foreign Corpora-
tions.— A statute of a state imposing an inheritance tax upon foreign
charitable corporations operating to some extent within the state as
to property reeeiv(^d by them therein by gift, bequest, or devise, is
not unconstitutional as an unlawful discrimination against them or
as denying them the equal protection of the law. (p. 898.)
L. ]\Iax\von. Jr.. J. E. Humiilireys and J. S. Graydon, for
the plaintifrs in error.
Hofflieinier. ]\lorris & Sawyer, for the defendants in error.
"^ rTJTC'E, J. It is .^aid in the opening of the brief for
plaintiffs in error, that this proceeding involves two cpiestions of
law: "1. Whether the appeal from the probate court to the court
(8S8)
March, 1904.] Humphreys v. State. 889
of common pleas was duly taken; 2. Whether the legacies are
taxable."
1. The right to appeal in cases like the present is conferred
by section 2731-13 of the Revised Statutes, which is: "The
court of probate, having either principal or auxiliary jurisdic-
tion of the settlement of the estate of the decedent, shall have
jurisdiction to hear and determine all questions in relation to
said tax that may arise, affecting any devise, legacy or inherit-
ance under this act, subject to appeal as in other cases, and the
prosecuting attorney shall represent the interests of the state
in any such proceedings."
It is claimed for plaintiffs in error that the words "subject
to appeal as in other cases" mean that the remedy of appeal
must be exercised according to the general rule provided for
appeal from the prtfbate to the court of common pleas, vhich
is found in section 6408 of the Revised Statutes. That sec-tion
provides, in substance, that the person desiring to take an ap-
peal, shall, within twenty days after the making of the order,
decision or decree from which he desires to appeal, give a
written undertaking to the ''^ adverse party, with one
or more sufficient sureties, to be approved by the probate judge,
and conditioned, etc. But when the person appealing is
a party in a fiduciary capacity in which he has given bond
within this state, and he appeals in the interest of the trust,
he shall not be required to give bond but shall be allowed the
appeal, by giving written notice to the court of his intention
to appeal within the time limited for giving bond.
It is conceded in this case that no bond was given, 'by either
the state or by the prosecuting attorney in behalf of the state;
and it is manifest on the record that the only notice of appeal
was given by journal entry as follows: "The prosecuting attor-
nev gives notice of appeal from so much of said order as fiiuls
that an inheritance tax is not payable upon the legacies to the
following legatees, viz. : American Bil)le Society " et al.. naming
each of the other religious societies and boards, receiving lega-
cies.
But is the mode of appeal governed by section 6-108 of the
Revised Statutes? In such a proceeding before the probate
court, it cannot be correctly stated that either the state or tlie
prosecuting attorney acts in a fiduciary capacity. On the con-
trary, the state is a sovereign and such is its relation to ilie
controversy. It is provided in section 213 of the Revised Stat-
utes: "No undertaking or security is rc(|uired on behalf of the
SUO xVmeiucan State Uepokts, Vol. 101. [Ohio,
state or of any officer thereof in the prosecution or defen&e of
any action, writ, or proceeding; nor is it necessary to verify
the pleadings on the part of the state or any officer thereof in
any such action, writ, or proceeding.'^
It is under this section that the state or its officer is relieved
from giving bond for an appeal, and not '"'* under section 6108,
supra. And the state or the prosecuting attorney, not sustain-
ing a fiduciary relation to the proceeding, the notice of appeal
in behalf of the state need not be in writing as provided in the
latter section; for it is only where that relation exists, that
such written notice is required under its provisions.
We are of opinion that section Gill of the same chapter and
title furnishes the guide in this case. ''That provisions of law
governing civil proceedings in the court of common pleas shall,
so far as applicaldo, govern like proceedings in the probate
court, when there is no provision on the subject in this title."
We have seen that the other provisions of the title do not
apply to this class of proceedings. We therefore look to the
manner of appeal from the court of common pleas as found in
section 5227 of tlie Eevised Statutes, which is: "A party de-
siring to appeal his cause to the circuit court shall, within
three days after the judgment or order is entered, enter on
the records notice of such intention."' This was the law at the
time of the appeal in this case.
Xotice of intention to appeal was entered on the records of
the probate court in conformity with the above rule, and we
think it is sufficient. The appeal was properly sustained.
2. Whether the legacies are subject to the collateral inlicrit-
ance tax, depends on the constiniction of section 2731-1 of the
Revised Statutes. The statute in its present form was enacted
April G, 1900: See 94 Ohio Laws, 101. This act provides in
part: "That all property within the jurisdiction of this sfate,
and any interests ^^ therein, wliether 1>elonging to inhabitants
of this state or not, and whether tangil)le or intangible, wliich
shall pass by will or by the intestate laws of this state, or by
deed, grant, sale or gift, made or intended to take effect in pos-
session or enjoyment after the death of the grantor, to any per-
son in trust or otherwise, other than to or for the use of the
father, mother, husband, wife, brother, sister, niece, nephew,
lineal descendant, adopted child .... or the lineal descend-
ants of anv adopted child, the wife or widow of a son, the lius-
band of the daughter of a decedent, shall be liable to a tax ot
five per centum of its value, above the sum of two hundred dol-
March, 1904.] Humphreys v. State. 891
lars, seventy-five per centum of such tax to be for the use of
the state, and twenty-five per centum for the use of the county
wherein the same is collected. ....
"But the provisions of this act shall not apply to property or
interests in property transmitted to the state of Ohio under
the intestate laws of this state, or embraced in any bequest, de-
vise, transfer or conveyance to or for the use of the state of
Ohio, or to or for the use of any municipal corporation or
other political subdivision of said state for exclusively public
purposes, or public institutions of learning, or to or for the
■use of any institution in said state for purposes of purely public
charity, or other exclusively public purposes; and the property
or interests in property, so transmitted or embraced in any such
devise, bequest, transfer or conveyance is hereby declared to be
exempt from all inheritance and other taxes, while used exclu-
sively for any of said purposes."
The words in the exemption clause, "to or for the use of any
institution in said state for purposes of '^ purely public
charity or other exclusively public purposes," are the subject of
the present controversy.
The first lines of the act are comprehensive and would em-
brace the legacies named and subject them to the inheritance
tax, unless they are saved by the above exemption clause.
Therefore counsel have discussed, and we are called upon to
consider, tlie scope of the language quoted when applied to the
facts of the present case. What are the material facts ?
It is shown by the record that all the legatee societies and
boards who are plaintiffs in error, save the Woman's Home
Missionary Society, are incorporated in states otlier than Oliio,
and while they are not organizations for profit, but for the pur-
pose of advancing the cause of religion and dispensing charitv,
tliey are, nevertheless, foreign corporations. Some were char-
tered under the laws of Xew York, and others under the laws of
Pennsylvania.
The Woman's Home Missionary is an auxiliary to tlie Board
of Home Missions, and the Woman's Foreign Missionarv So-
ciety is auxiliary to the Board of Foreign Missions. The par-
ent of all these societies and boards seems to be the General
Assembly of the Presbyterian Church in America, incorporated
in another state, which is the central and supreme authority,
and where the subordinate societies and boards became incor-
892 American State Eeports^ Vol. 101. [Ohio,
porated^ it was done under the direction of the General Assem-
Wy.
The American Tract Society has colporteurs in almost if
not all the states of the Union, and other agencies for the dis-
tribution of religious literature. The aim of the American
Bible Society is the distribution of the Holy Scriptures, trans-
lated into numerous languages, among the people generally,
'^' and especially among the destitute and needy classes. While
foreign corporations, or auxiliaries thereto, it is true that the
Mork laid out for each board and society is carried on in all the
states througli local and subordinate agencies, and it may be
admitted that theirs are works of charity in the broad sense,
tbat the uplifting of men, women and children to the standard
of life taught in the Scriptures is, indeed, a work of charity,
the greatest of the three Christian graces. The funds to carry
forward these religious enterprises, imder the various names
and organizations, are raised by church and other collections
and largely aided by devises and legacies.
The testatrix, Isabella Brown, no doubt was a devout member
of the Presbyterian church, and of her bounty sbe liberally gave
to these several societies and boards, believing tliey could l)cst
employ her gifts in advancing the cause of the church of her
choice.
Tbe work of the Board of IMissions for Freedmen lies mostly
in our soutbern states. But it must be stated as a fact a])pcar-
ing in the record, that while legatees, who are plaintilfs in er-
ror, tlirough auxiliary and subordinate agencies, are diligent
in every state of tbe Union, tbe biglicr autbority to wbich they
must account resides beyond the jurisdiction of this state, and
lu'Mce tbe question recurs. Are tliey "institutions in tbis state
for purposes of purely public charity, or other exclusively pub-
lie pur[)osos"'?
Wo are urged to conclude that because the work of these so-
ciftio? and boards is in progress, in greater or less degree, and
tlifir influonco felt in this state through the various subordinate
;ii.'i'n(i(>5 (Miiployod, tbe institutions tliomselves are in tbis state
witbin tbe meaning of the statute. If tbis is true of Obio,
'^ it i? true of every otber state, and we have these institutions,
i.ot only in tlie state wbere tliey are cliartered, but omnipresent
and in all tbe statos. In f)tber words, tbey would, as institu-
tion? exist in any state wbere any of tbeir charitable or religions
rntcr]u-ises are projected and carried on, no matter in what de-
March, 1904.] Huaiphreys v. State. 893
gree. Such a construction of the facts and tlie law, we think,
is not permissible, if the statute is valid, of which we shall
speak later in this opinion.
It seems to be true that some of these societies and boards
have an office in Ohio in charge of a representative, the better
to conduct the affairs of that church agency. So, also, have
railway, insurance, telegraph, telephone, and other foreign cor-
porations; but that is to further their husiness enterprises.
Such companies are not "institutions in this state," because
they have traffic and conduct business here. They are still cor-
porations and institutions of the state where chartered and or-
ganized.
Learned counsel for plaintiff in error ask in their brief,
^'Where are these institutions if not in Ohio? Where were the
institutions before charters were granted? For they were in
existence long prior to the dates of the charters."
It is perhaps true that these institutions now operating under
charters may have had another form of existence prior to the
date of the charters, but in the wisdom of the General Assem-
bly of the church it was decided to organize them under char-
ters, and it selected the state under whose laws it should he
done. It is not a new proposition that the liomc of the cor-
poration is the -state of its incorporation, and wlien so incor-
porated imder the laws of a state selected for tliat purpose it
has also selected its ahiding place, and no longer can be recog-
nized as '^^ homeless, or as abiding in every state whore they
have agencies carrying forward their work of benevolence and
charity. We think this view is abundantly siii)i)orted by the
authorities.
The will of i\rrs. Brown, who was a resident of Cincinnnti.
gave no directions to her executor or her legatees as to the jihue
where the money should be ex])eiided, nor does it undertiike
to control the time or place of the expenditure. Once in the
])Ossession of these institutions, it nu\y be disljursed as they
deem proper, and all of it may be disljursed in communities
beyond ©ur borders. So we do not fmd that we are adopting a
narrow construction of our statute if it appears that it under-
takes to tax the right of the foreign, though charitable, institu-
tions to receive and so al)Solutely control the disjiosition of prop-
erty own(^d by the testatrix in this state. We think these lega-
tees are not ''institutions in this state" within the meaning of
the statute.
894 American State Eeports, Vol. 101. [Oliio,
The doctrine we maintain is happily exprcpsctl by Justice
rield in Paul v. Virginia, 8 Wall. 181, 19 L. ed. 35*7, as fol-
lows : "Xow, a grant of corporate existence is a grant of spe-
cial privileges to the corporators, enabling them to act for cer-
tain designated purposes as a single individual, and exempting
them (unless otherwise specially provided) from individual
liability. The corporation being the mere creation of local law,
can liave no legal existence beyond the limits of the sovereignty
Avhere created. As said by this court in Bank of Augusta v.
Earle, 13 Tct. 519, 10 L. cd. 274: 'It must dwell in tiie place
of its creation and cannot migrate to anotlier sovereignty.' The
recognition of its existence, even in other states, and tlie en-
forcement of its contracts made therein, depend purely upon
the comity of those states — a comity which is never extended
*^^ where the existence of the corporation or the exercise of its
j)0wers are prejudicial to their interests or repugnant to their
])olicy They may exclude the foreign corporation en-
tirely; they may restrict its business to particular localities, or
tliev mav exact such security for the performance of its con-
tracts with its citizens as in their judgment will best promote
tlie public interest. The whole matter rests in their discretion."
Again, in speaking of the assent of the other states to transact
liusiness within their borders, the learned justice adds, "that
such assent mav be granted upon such terms and conditions as
those states may think proper to impose."
"We have from this higli authority a definition of the situs of
corporations and th.eir relation to states other than where cliar-
t>'rcd; and we find no distinction in this respect betv.een busi-
ness corporations and those not for profit, or for reliLiious or
cliaritable purposes. Quotation from other autlun-ities w(^ tliiuk
superfluous and it seems clear that these charitai)le and religious
institutions, being corporations foreign to the state, are not
''institutions in this state," and are, therefore, not within tlie
exemption provided in the inheritance statutes.
A]i]ilying the doctrine in a practical manner, we have nu-
nierous (Icci.-ioiis, many of wliicli are cited in tlic briof I'or dc-
fen(hints in eir(jr. ^\'e will occupy space in citing and dis-
cussing hut I<'\v of tliem. and only such as may serve as fairly
representative of the manv others.
In People v. Seaman's Friend Soc, 87 111. 2 IG, it ap^iears that
tlio soficiy was iiic'irp'iralod nndor the laws of Ohio. It had
a building in Chicago *'■'• in charge of a superintendent, wliere
March, 1904.] Humphreys v. State. 895
seamen, dockmen, were solicited to meet for religious and
moral instruction, and lodging was provided for needy cases.
The object of the society, as declared in the act of incorpora-
tion, is ''for disseminating moral and religious instruction, and
other charities, among sailors and laborers doing business on
cur western waters." This institution resisted the collection-
of a, tax on the Chicago premises, on the ground that, being a
place where charity is dispensed, it was exempt. The court,
on page 249, say: "But if a broader construction could be
given to the statute, and it could be held to cin])i-acG all institu-
tions that dispense charity, whether public or private, and the
property used exclusively for that purpose, there is still a valid
reason why the property in this case is not exempt from its just
proportion of taxation. The statute must, in any event, be un-
derstood to have exclusive reference to institutions or corpora-
tions created by tlie laws of this state, and not to foreig-n
corporations that may choose to locate branches in this state.
It is only by the comity that exists between states that foreign,
corporations are permitted to transact in this state the business
for which they were created. The General Assembly has man-
ifested no intention to relieve the property situated in this state,
belonging to such corporations, no matter what their objects
U'ay be, whether charitable or otherwise, from the burdens of
taxation."
We further illustrate the application of the statute by ref-
erence to another leading case, decided by the court of appeals
of New York: ]\ratter of Estate of l^rinie, 13G N. Y. 317, 32
X. E. 1091, 18 L. R. A. 713. Triine, a resident of that state,
died in the city of New York on April 7, 1891, leaving a will
disposing ^^ of real and personal property. He gave legacies
to collateral relatives and also to two foreign corporations — the
American Board of Commissioners for Eoreign ]\Iissions and
the Presbyterian Board of Eelief for Disabled ]\Iinislcrs. The
taxing authorities exacted a collateral inheritance tax on the
legacies to those corporations, as well as on tlie legacies to the
collateral heirs. These legatees appealed, and tbe contruversy
jinally reached the court of appeals. Other qnestions were in
the case, as to the condition of the statutes of that state upon
the subject, which are not relevant here and tlu'v are omitted.
We quote ffoin the able opinion of Andrews, C. J., as follows:
''The claim that the test of liability of foi-eign corporations to
a legacy tax is the liability of a domestic corporation of the
896 American State Eeports, Vol. 101. [Ohio,
same character to the payment of such tax, and that if one is
exempt, the other is exempt also, has, we think, no foundation.
In both cases tlie question is the same — Has the statute n ade
the legacy taxable? .... The argument that gifts for the pro-<
motion of charity, education and religion should be encouraged
and should not be diminished by exactions of the state, presents
a moral and political rather than a judicial question. It is the
duty of courts in the interpretation of statutes, to declare the
law as it is, and tbe interests of society are best subserved by
a close adherence by courts to what they find to be their plain
meaning, neither narrowing the application on one hand, nor
extending the meaning on the other, to meet a case not speci-
fied, which may be within the reason of the law It iS'
the policy of society to encourage benevolence and charity.
But it is not the proper function of a state to go outside its own.
**^ limits and devote its resources to support the cause of re-
ligion, education or missions for the benefit of mankind at
large." The opinion ifrom wbich the above was quoted was
unanimous.
The same court had before it another inheritance tax case,
which is found in Matter of Balleis, 144 N. Y. 132, 38 X. E.
1007, where tlie Prime case was considered and its principles
unanimously approved. It was held that "a sUitute of a state
granting powers and privileges to corporations must, in the ab-
sonce of plain indications to tlie contrary, be held to apply only
to cor])()rations created l)y the state and over which it has the
power of visitation and control. The legislature in such cases,
is dealincr with it.s own ercatiotis, whose rights and obligatit>ns
it may limit, define and control."
The Prime case was considered as a valiiahle niillioritv v.\
United States v. Perkins, 1G3 V. S. 025, IG Sup. Ct. Rep. 1073,
41 L. ed. 287, and it is quoted from, as we have done, with ap-
proval, and adds, as found on page G29 of 1G3 U. S. : "Such
a tax ( iiilieritancc lax) was also held by this court to he free
from any constitutional ol)jection in ]\rager v. Grima. 8 How.
■!!>o-l!)3, 12 L. cd. 11G8, Mr. Justice Taney remar]<ing that
'tlie law in question is nothing more than an exercise of the
power which cvory state and sovereignty possesses, of re.^ulating
the manner and terms within which property, real and personal,
within its dominion may be transferred by last will and testa-
ment, or by inheritance ; and of prescribing who shall and who
shall not be capable of taking it If a state may deny
March, 1904.] Humphreys v. State. 897
the privilege altogether, it follows that when it grants it, it may
annex to the grant any conditions which it supposes to be re-
quired by its interests or policy.' We think ^ that it follows,
from this that the act in question is not open to the objection
that it is an attempt to tax the property of the United States,
(a legatee of personal property), since the tax imposed upon
the legacy before it reaches the hands of the government. The
legacy becomes the property of the United States only after it
has suffered a diminution to the amount of the tax, and is only
upon this condition that the legislature assents to a bequest
of it."
The same doctrine is found in Eidman v. Martinez, IS-i U. S.
578, 22 Sup. Ct. Kep. 515, 46 L. ed. 697; Horn Silver Min.
Co. V. New York, 143 U. S. 305, 12 Sup. Ct. Rep. 403, 36 L.
ed. 164.
From the foregoing cases we see that the exemptions of char-
itable institutions would relate only to domestic institutions of
that class, even if the words "^in the state" had been omitted
from the statute. It is not a tax upon property, but upon tlie
right to receive property and have it transferred. Our statute
does not impose the tax upon the property directly, because it
provides that '*all administrators, executors and trustees ....
>liall be liable for all such taxes, with lawful interest, as here-
inafter provided."
However, it is argued that our construction of the statute
])Iace it in conflict with section 2 of our Bill ol IJighls; and
also in conflict with the fourteenth amendment to the constitu-
tion of the United States. We will consider these guaranties
together. That part of section 2 of our Bill of Eights which
is germane to tlie argimient is: "And no special privileges or
immunities shall ever be granted that may not be altered, re-
voked, or repealed by the general assembly." Tliat portion of
the so-called fourteenth amendment to the constitution of the
United States which is pertinent now is: **■"* '"Xo state shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; .... nor deny
to any person the equal protection of the laws."
Very much that we have already said and quoted bears upon
the interposition of these provisions, and we still fail to see
how the statute under consideration discriminates against the
institutions complaining here. Section 2 of the Bill of Eiglits
interdicts the conferring special privileges and immunities be-
Am. St. Rep., Vol. 101—57
898 American State Reports, Vol. 101. [Ohio,
yond the power of the general assembly to alter, revoke or re-
peal. There is nothing occult or mysterious about this lan-
guage in our declaration of fundamental principles.
Our constitution was adopted by the people of Ohio as their
charter of rights and restraints, and it is not charged with
tlie care of nonresident persons or corporations; and the statute
in question creates no privileges or immunities in favor of char-
itable institutions within the state, whicli the general assembly
may not alter, revoke or repeal; and surely it is competent for
it to exempt the property of institutions, corporations, which
it has created, which property is devoted to purely religious or
charitable purposes. There are no Ohio institutions here com-
plaining of any discrimination against tliem. Xor do we see
any help for plaintiff in error in the fourteenth amendment to
our federal constitution. The statute we are considering does
not abridge the privileges or immunities of citizens of other
slates, nor docs it deny to any person the equal protection of
the laws.
Within the meaning of this clause a foreign corporation is
not a citizen and cannot invoke its protection. *" By judicial
construction of the constitution of the United States and the
federal judiciary act, a corporation is a citizen for the purposes
of federal jurisdiction of the state l)y which its charter has been
granted, and this withoiit reference to the residence of the mem-
bers or shareholders who compose the corporation. When a
corporation chartered by or created under the laws of a foreign
state is sued in a state court, it may remove the cause to the
circuit court of the United States in like manner as a nonresi-
dent citizen may, without regard to residence of its members
or shareholders. But it is a settled principle of constitutional
law that a corporation is not a citizen within the moaning of
ti'at clause of the constitnlion of the United States wbitb de-
clares that "the citizen of each state shall be entitled to all the
])rivilegps and imnmnities of citizens of the several states": 10
Cvc. I."i0; Dneat v. Cbieago, 4S HI. 172, 95 Am. Dec. 52!): Ta-
tcm v. Wriglit. 23 N". J. L. 429; Ducat v. Chicago, 10 Walk
410, 19 L. ed. 972.
In roiiiliina Consolidated Silver Min. etc. Co. v. Pennsyl-
vania. 125 V. S. 181. 8 Sup. Ct. Rep. 737. 31 L. ed. G50, the
supreme court of the T'nitod States savs in the svllabus: "Cor-
porations are not citizens within the meaning of the clause of
the constitution declaring that the citizens of each state shall
March, 1904.] Humphreys v. State. 899
be entitled to all privileges and immunities of citizens in the
several states: Const., art. 4, sec. 2, cl. 1. A private corporation
is included under the designation of 'person^ in the fourteenth
amendment to the constitution, section 1. The provisions in the
fourteenth amendment to the constitution, section 1, 'that no
state shall deny to any person within ita jurisdiction the equal
protection of the laws,' do not prohibit a state from requiring
^"^ for the admission within its limits of a corporation of an-
other state such conditions as it cliooses.''
This doctrine was fully reviewed and indorsed in Horn Silver
Min. Co. V. Xew York, 143 U. S. 305, 12 Sup. Ct. Kcp. 403, 36
L. ed. 164.
It seems unnecessary to cite other decisions by state courts,
since the highest tribunal in the land has thus expounded these
constitutional provisions.
There is another reason why the alleged discriminations
against nonresident institutions is without foundation. The
legislature has the right, in laying taxes, to classify corpora-
tions, as has been done in this state in recent years and which
has been upheld by this court as within the constitutional power
of the general assembly. Railroad com])anies are reached by
one mode of appraisal and assessment for taxes; telegraph,
telephone, and express companies by other methods; and more
private corporations by still another mode. No discriminations
can be tolerated in favor of or against one of the corporations
of the same class; but there is no valid objection in tlie fact that
one class is required to share in the common burden of taxa-
tion in a diiTerent way and even in a different degree, from
those in other classes: Lee v. Sturges. 46 Oliio St. 153, 19 X.
E. 560; Hagcrty v. State, 55 Ohio St. 613. 45 X. E. 1046.
If resident corporations, the creatures of our own laws, can-
not ji^^tly complain of such classification, liow can foreign cor-
porations be heard to find fault wlien tlicy may bo subjected
to any reasonable condition for their admission to operate in this
state, and ^* even may be excluded altogether, unless engaged
in interstate commerce ?
The judgment of the lower court is sound, and it is aHirmed.
Spear, C. J., Davis, Shauck, Crow and Summers. JJ.^ concur.
On tlie Td.rnfinn nf Prnprrfii TTrJd for ChnrUnhlr purposos. trcnprallv,
sop St. Lonis v. Wonneker, 145 AIo. 2.30, 68 Am. St. Rep. fjfil. 47 S. \V.
10.5. As to what property is exempt from tnxntion ns a "chnritable
institution" or a "public charity," see Philadelphia v. Masonic
900 American State Reports, Vol. 101. [Ohio,
Home, 160 Pa. St. 572, 40 Am. St. Eep. 736, 28 Ail. 954, 23 L. E. A.
545; Hibernian Ben. Soc. v. Kelly, 28 Or. 173, 52 Am. St. Kep. 769,
42 Pac. 3, 30 L. K. A. 167; County of Henepin v. Brotherhood of
Gethsemane, 27 Minn. 460, 38 Am. Eep. 298, and note.
Corporations, either foreign or domestic, are not entitled to the
privileges of citizens in a constitutional sense, save in the matter
of jurisdiction to enable them to appear in the courts: State v.
Hammond, 110 La. 180, 34 South. 368, 98 Am. St. Eep. 459, and cases
cited in the cross-reference note thereto. A state has a right to
classify foreign corporations doing business within it in a separate
class, and tax them more and on a different basis from domestic
corporations: State v. Hammond Packin^r Co., 110 La. 180, 98 Am.
St. Eep. 459, 34 South. 368. See, too. Northwestern Mut. Life Ins.
Co. V. Lewis and Clarke County, 28 Mont. 484, 72 Pac. 982, 98 Am.
St. Eep. 572, and cases cited in the cross-reference note thereto.
GIBBOXS V. EBDTXG.
[70 Ohio St. 298, 71 N. E. 20.1
EASEMENT— Ways Created by Deed— Enforcement.— A re-^er-
vation in a deed of a specific part of granted premises to be useil
as a driveway in common by the grantees, and adjoining owners of
land, creates an easement in the property granted appurtenant to
the adjoining land of the grantor, and binding on that conveyed to
the grantee, which passes with the land to all subsequent grantees,
and wlii<-h may be protected or enforced at law or in equity, (p. 901.)
EASEIMENTS — Ways— Right to Close with Gates or Bars. — Tf
a right of way is created by reservation in a deed, the grantee ac-
quires the ])roperty su])jcct only to such right and may use the land
for all purposes not inconsistent witli it, and in the absence of any-
thing in the deed or in the circumstances un<ler which the way
was acquired or used, showing that it was to be open, tlie grantee
may put gates or bars across it, unless they would unreasonably
interfere with its use. (p. 902.)
Gouldcr, Holding & ]\rasten, for tlic plaintiffs in error,
Kerruish, Chapman & Kerrui.<h, for tlie defendants in error.
^*''' STJ^[MEliS, J. What right or easement, if any, in the
twelve feet driveway the owners of the lots conveyed to Southern
had prior to liis conveyance to the plaintiffs in error, it is not
necessary to determine. From his deed to the plaintilfs in error
it is api)arent that Southern intended therein to create or re-
serve a right to himself and to the owners of lots on Willson
avenue a twelve feet strip for a driveway to use in common
with the grantees, and so was created an easement in the land
June, 1904.] Gibbons v. Ebdinq. 901
granted appurtenant to the land for the benefit of which it was
created and then owned by him.
In Whitney v. Union Ry. Co., 11 Gray, 359, 363, 71 Am. Dec.
715, Bigelow, J., says: "Every owu'cr of real property has the
right to so deal with it as to restrain its use by his grantees
witliin such limits as to prevent its appropriation to purposes
which will impair the value or diminish the pleasure of tlie
enjoyment of the land which he retains. The only restriction
on this right is, that it shall be exercised reasonably, with a
due regard to public policy, and without creating any unlaw-
ful restraint of trade. Nor can there bo any doubt that in
whatever form such a restraint is placed on real estate by tlie
terms of a grant, whether it is in the technical form of a con-
dition or covenant, or of a reservation or exception in the
^^^ deed, or by words which give to the acceptance of the
deed by the grantee the force and effect of a parol agreement,
it is binding as between the grantor and the immediate grantee,
and can be enforced against him by suitable process, both in
law and equity.^'
And in Coudert v. Sayre. 46 K j. Eq. 386. 395. 19 Atl.
190, Van Fleet, vice-chancellor, states the following as his con-
clusions from an examination of a number of authorities: "The
doctrine now in force on this subject I understand to be this :
That when it appears by the true construction of the terms of
a grant that it was the well-understood purpose of the parties
to create or reserve a right, in the nature of a servitude or
easement, in the property granted, for the benefit of other land
owned by the grantor, no matter in what form sucli purpose
may be expressed, wdietlier it be in the form of a condition.
or covenant, or reservation, or exception, sucli right, if not
against public policy, will be hold to bo appairtcMiant \o tlic
land of the grantor, and binding on that conveyed to tlio gran-
tee, and the right and burden tlius created and ini]i(is('d will
pass with the lands to all subsequent grantees. And anv grantee
of the land to Avhich such right is appurtenant acquires, by
his grant, a right to have the servitude or easement, or right
of amenity, as it is sometimes called, protected in equitv. not-
withstanding that his right may not rest on a covenant wbicli.
as a matter of law, runs with the title to his land, and not-
withstanding that it may also be true that he may not be able
to maintain an action at law for the vindication of his riLdit.*'
It follows that the circuit court was right in conclr.diiig
^^"^ that the plaintiff below, by her deed, ac(juirod an ea>enient
D03 Amehican State REroRTS, Vol. 101. [Ohio,
to the driveway over the twelve- foot strip, and tliat she was
entitled to an injunction protecting her in the right to use it,
but U]K>n what ground the plaintiffs in error were enjoined
from inclosing it by a gate is not apparent.
There is nothing in the language of the reservation ' of the
right to use the twelve feet as a driveway that indicates that
it was to 'be either open or public. On the contrary, it is re-
served to be used in common by the owners of property on Will-
eon avenue adjoining the driveway, and by the grantees. The
property of plaintiffs in error is not bounded on the east by
a public way or street, but by a beer garden, it is said, and
the court expressly finds that the driveway is also used by tres-
passers who commit nuisances therein, and that the rental value
of plaintiff's property is reduced tliore])y,
"\Micre a riglit of way is created by reservation, the grantee
acquires the property subject only to this right, and may use
tlie land for all purposes not inconsistent with it. 'The only
limitations upon tlie riglit of the grantee are sueli as are neces-
sary to the pro])er use of the right of way; notliing wliich is
not expressly reserved will be regarded as an incident to the
reservation except that wliich is necessary for such reasonable
enjoyment and use.' Accordingly it was held that the erection
of gates or bars at the termini of the way was not an unreason-
able interference with its use."
"The rule is general that the land OA\Tier may put gates and
bars across a way over his land, which another is entitled to
enjov. unless, of course, there is something in the instrument
creating the way. or ^^^^ in the circumstances under which it
lias been actjuircd or used, which shows that the way is to be
an njnm one. Tlie easement of way is for passage only. The
laiul remains the property of the Owner of the servient estate
and be is entitled to use it for any purpose tliat does not inter-
f<'re with tlie easement"': Jones on Easements, sees. 407, 413;
^\'a-llburn on Easements, 255; Methodist Prot. Church v. Laws,
4 Ohio Cir. Dec. 5G2, 7 Ohio C. C. Eep. 211.
'i'hc il(H-ree of the circuit court is modified to the extent that
it allowed an injunction against the erwtion and maintenance
of a gate, and a,s so modi lied, is affirmed.
Spear, C. J., Davis, Shauck, Price and Crew, JJ., concur.
// fi I'lfiht of ^V'n| ift Rrxirrrd, but not specifically defined, the war
reel oiilv 1)0 sii( li a'< is re.isoiiahly necpssiiry and convenient for tho
piiriHise "for wliicli it w;is granted: Grafton v. Moir, l.'^O X. Y. 46:"),
27 Aui. St. Kop. 5o3, 29 N. E. 974. The owner of land which is
June, 1904.] Gibbons v. Ebding. 903
subject to a right of way has the right to use his land in any way
not inconsistent with the easement: Herman v. Roberts, 119 N. Y.
37, 16 Am. St. Rep. 800, 23 N. E. 442, 7 L. R. A. 226; Grafton v.
Moir, 130 N. Y. 465, 27 Am. St. Rep. 533, 29 N. E. 974. See, also,
Lott V. Payne, 82 Miss. 218, 100 Am. St. Rep. 632, 33 South. 948.
That covenants creating easements may run with the land, see the
monographic note to Geiszler v. De Graaf, 82 Am. St. Rep. 674.
The rights and obligations of parties to private ways is the subject
of a monographic note to Dudgeon v. Bronson, 95 Am. St. Rep. 318-
330.
CASES
IN THE
SUPREME COURT
OF
PENNSYLVANIA.
STOXE V. MAESHALL OIL CO:\rrANY.
[208 Pa. St. 85, 57 Atl. 183.]
CONFUSION OF GOODS is the Willful and Fraudulent inter-
mixture of the chattels of one person with the chattels of another,
without the consent of the latter, in such a way that tiiey cannot be
separated and distinguished, (p. 90S.)
CONFUSION OF GOODS— Doctrine and Effect.— Although
such a term as "confusion of goods" is goncrall}^ used, there is in
fact, properly, no such doctrine as a "confusion of goods." There
is a fact of confusion of goods, which if conimitled with a fratidu-
lent motive, subjects t'ho transaction to an inflexible rule, that tlie
wrongdoer shall not profit by, nor the innocent person suffer from,
the wrong, (p. 911.)
CONFUSION OF GOODS.— If a Natural Gas Company fraudu-
lently coniniingles gas from leased pr()j)erty with gas from other
properties under its control, keeping no account thereof, it is bound
to account to the owner of the leasidiold, who is entitled to one-fonrtli
of the jtrofits therefrom, for one-fourth of the prolits from tlic wliole
gas confused, (p. 911i.)
A. L. Weil, J. AV. Leo, Jolm Cliapnian, E. B. Stone and
Charles ]\L Thorp^ for tlie appellants.
Johns ]»IcC']eave and E. W. Cuniniins, for the appellee.
^^ Dl'^AX, J. Akin, one of the plaintiffs, on Xovemher 13,
]8S5, leascf] fi-om (i rimes the oil a.nd pas under the latter's one
liundred and lifty acre farm in Washington county, for the
tenn of three ycais or as long as oil and gas should be found in
jtaying quantities. Akin a.s a consideration was to gnve one-
eighth llie oil if oil wei'e found, arid in case gas was struck in
pa\ing (juanlities, waa to pay Grimes $T00 annually for each
Jan. 1904.] Stoxe v. Marshall Oil Co. 905
well. One well was to be completed within a year, and Akin
was to pay $150 annually in quarterly payments until a well
was completed; the lease was acknowledged and recorded July
22, 188G. On December 2, 1886, Akin assigned one-half his
lease to C. W. Stone, R. B. Stone and A. J. Hazeltine, the other
three plaintiffs to this suit; this assignment was recorded the
same day. They drilled no well, but made the quarterly pay-
ments to Grimes who accepted them. On August 19, 1887, they
executed a lease of fifty acres of the farm to the Marshall Oil
Company, subject to all the stipulations of the original lease
from Grimes to Akin, all of which stipulations were to be kept
and performed by the oil company. Tlio oil company was to
liave the right to drill and operate for oil and gas for one year
and as much longer as oil and gas should be found in paying
quantitio;^; the company was to drill four wells, to be com-
pleted within four, eight, twelve and sixteen months respec-
tively. ^** Part of the consideration is embodied in this pro-
vision: ''The said party of the second part (the oil company)
for itself, its successors and assigns agrees to give to said parties
of the first part (Akin, Stones & Hazeltine), one-fourth of all
petroleum, one-eighth to credit of John Grimes and one-eighth
to the lessors of this lease. It is also agreed that in case gas
shall be discovered and conducted off the premises for use or
sale, the said parties of the first part in the proportioiiatc in-
terests aforesaid shall receive one-fourth of the ])rofits thereof
above cost bonus of $700 to the original lessor."' This lease
is dated August 19, 1887, and was rei-ordod the next (hiv. On
December 25, 1887, this lease was supplemented by anoiher of
tbJrty acres more of the farm on tlie same terms, but ])rovi(]-
ing that of the four wells, none of which had vet been drilled.
two should be completed within four months, one on tbe lil'iy-
acre tract and one on the thirty acre tract, and that as to all
oil or gas produced on either tract the royalty sbould be the same
as that fixed for the fifty acres. The Marshall Oil Com]iany
tlien drilled one well, a very strong gas-well ; the ]\larsliall Oil
Company did not utilize it itself, but sold it to tbe Washing-
ton Oil Company, another of defendants. Tben, on June 1!',
1SS8, tbe ]\larsball Oil Company induced Grimes to lease to it
directly tlie whole farm for oil and gas purposes. Tbe terms
of the lease were substantially tbe same as those in the lease
from Grimes to Akin except, that instead of $700 per annum,
the price for each gas-well was to be $000, but tbe price for
906 American State Reports, Vol. 101. [Penn.
the well completed was to remain $700. Then by a separate
agreement Grimes reduced the price per well to $500. Then
by agreement dated July 5, 1888, the Marshall Oil Com-
pany leased an additional fifteen acres to the Washington Oil
Company subject to the same terms as its first lease to the
same company dated the previous June. The Washington Oil
Company tubed the first well, piped the gas and sold it from
August, 1888, to September, 1889, then by bill of sale trans-
ferred the gas to the Taylorstown Xatnrnl Gas Company which
has been disposing of it ever since. This last company was,
practically, a selling company for the Washington Oil Company.
The first well was a remarkably strong and productive well ;
even after nine years there is no perceptible diminution in the
pressure or in the volume of gas.
^1 After its contract with Grimes of June 19, 1888, the Mar-
s};all Oil Company and Washington Oil Company drilled other
wells on the Grimes farm and the gas from them, as well as
from the first well drilled, was conducted into a main pipe and
from that pipe conducted and distributed to consumers who
desired to purchase it. The defendants refused to account to
plaintiffs for their share of the profits of the Grimes well and
this bill was filed in July, 1893, for discovery and for an ac-
coimt and decree of their share of the profits of that well.
Defendants set up defense that the lease from Grimes to
Akin and from the latter to the Stones and llazeltine were not
the subject of assignment; that the covenant for share of the
profits was a mere ])ersonal covenant of tlie ^klarshall Oil Com-
pany and not binding on its assignees; tliat there had been de-
fault in payment to Grimes which avoided the lease, and ^hat
plaintiffs had an adequate remedy at lav/.
The late Judge White, then sitting as chancellor, after a full
hearing on the evidence, in an elaborate opinion filed, decreed in
February, 1898, that defendant should account and sent the case
to a master to state an account of the profits of the Grimes well.
From ttiis decree defendants appealed and it was affirmed by
this court on the opinion of the court below November 14, 1898,
and now after five years more with many and prolonged hear-
ings l)efore the master and tlie court below, we have this appeal
by plaintilfs. Judge White, in his opinion decreeing the ac-
counting, held tliat "it was very evident that the Marshall
Oil Company in procuring the lease from Grimes (of the whole
farm) June 19, 1888, acted in bad faith and was guilty of a
Jan. 1904.] Stone v. Marshall Oil Co. 907
legal fraud upon the plaintiffs/' and that this was for two pur-
poses, one to get clear of drilling another well, and second to
get clear of paying to plaintiffs the share of one-fourth of the
profits on the sale of gas. He further held : "A share of the gas
stands on the same footing as a share of the oil. A share of
the oil may be delivered at the well or in pipe lines; as a share
of gas could not be delivered in specie at the well or elsewhere,
the only way of sharing it would be to share in the proceeds of
sale."
The master then, very properly, brushed aside much of the
rubbish brought into the case by defendants to shield them
from fully accounting, and as he was bound to do, treated two
^''^ questions as res adjudicata: 1. Defendants were bound to
account for one-fourth the profits from the Grimes gas-well;
2. To get at their share of the profits they were bound to show
with approximate accuracy plaintiff's money share of the profits
by showing the quantity of gas produced from that well. But
defendants alleged the gas from the Grimes well was indiscrim-
inately blended and mixed by defendants with tliat from a
number of other wells of theirs, and it is impossible now to
tell the quantity received from that particular well. As to
this plea the master answers : "It is true they admit they were
unable to determine with accuracy how much gas came from the
Grimes well, but tlicy say, having failed to keep such account,
\^hat more can we do than we have done? This might answer
very well if they had innocently erred, but if the failure to
keep an account is not the result of innocent error, but of a
fixed purpose to secure for themselves the profits of the Grimes
lease, the case is a very different one. Tlie testimony discloses
the fact tliat the defendant companies have acted with their
eyes open and with full knowledge of tlie claim of plaintiffs to
one-fourth the profits from the sale of gas from the Grimes
well."
The master might very well find that thev had acted with
their eyes open; not only were the lease to Akin and the assigi;-
ment of half interest by him to the otlier three plaintiffs be-
fore them, but they had actual notice from R. B. Stone of plain-
tiffs' contract and claim of right under it. In 1803 this bill
was filed, yet no attempt for nearly ten years was made to keep
any account of this particular well. The master finds that
there was a well-known system of measurement which niioht,
with but little trouble, have been adopted and approximate ac-
908 American State Reports, Vol. 101. [Penn.
curacy of quantity obtained. Having made no effort to keep
an account, with a full knowledge of their moral and legal ob-
ligation, they mingled the production of this well with their
other wells, so that it is now impossible to ascertain, with even
approximate certainty, the quantity. That it was very large,
that it was 'in volume persistent and under high pressure, is not
questioned.
The master having stated the facts of the confusion of plain-
tiffs' property with that of defendants and the fraudulent pur-
pose in defendants' conduct, and after finding as a fact from
^'^ the evidence that it was impossible to separate with even
approximate accuracy as to quantity the product of the Grimes
well from the product of defendants' other wells, finds that in
law there was by defendants a confusion of goods, and to the
end that he might award to plaintiffs their one-fourth share of
1be profits under this contract he adopts the definition of "con-
fusion of goods" given in D wight on Persons and Personal
Property, 486, as his rule of action. That definition is as fol-
lows : "Confusion of goods, as understood in English and Amer-
ican law, is the willful and fraudulent intermixture of the chat-
tels of one person with the chattels of the other, without the
consent of the latter in such a way that they cannot be sepa-
rated and distinguished." The master fortifies the accuracy
and scope of this definition by a citation of unimpeachable au-
thorities. In fact, there is no sul)stantial distinction between
his definition and that cited by appellees' counsel from Suther-
land on Damages, section 101 : "A reasonable rule which has
much authority to support it is, that one who has confused his
own property with that of other persons shall lose it wlien there
is a concurrence of these two things: 1. That he has fraudu-
lently caused the confusion; and 2. That the rights of the
other party after the confusion are not capable otherwise of
complete protection." Taking the facts as found bv the mas-
ter, there is no distinction in the applicability of either defini-
tion. So the master, governed by this rule, stated an account
charging the defendants witli the gross receipts of gas from Oc-
tober, 1888, to Fehruar}-, 1898, $519,544.03, and allowing them
credit for exj)enses and other items which reduced the amount
to .$151,801.22; one-fourth of this, or $112,965.30, he awar.led
to plaintiffs as their share of profits and submitted his report
accordingly to tlie court. In the meantime Judge White, who
liad heard the evidence at the first hearin^js, and who had ad-
Jan. 1904.] Stone v. Marshall Oil Co. 909
judged the liability of defendants to account and had appointed
the master, died, so exceptions to the report were heard and
passed upon by Judge Shafer, who decreed in opinion filed that
the exceptions denying the application of the doctrine of the
confusion of goods be sustained, and that the case be referred
back to the master that he might state an account in accordance
with that opinion. Accordingly, the master with great reluc-
tance restated the ^■* account as directed by the court making
the receipts from the Grimes well $111,203.05, and one-fourth
of that sum, $27,800.76, he awarded to plaintiffs. That state-
ment of account the court confirmed absolutely, and we have
tliis appeal by plaintiffs assigning for error the change in the
computation as directed by the court.
The reasons given by the learned judge for setting aside the
account stated by the master do not convince us that his decree is
correct. He says: "Upon a careful examination of the author-
ities cited by counsel we are convinced that the doctrine of con-
fusion of goods is not applicable to the facts of this case."
Then, after stating the substance of the contracts on which the
claim of plaintiff is based, he further says : "The default of
the defendants consists not in mingling the goods of the plain-
tiffs with their own, but in failing to keep a proper account of
the proceeds of the Grimes well so as to be able to show defi-
nitely the amount of profit derived therefrom by them. The
well and the gas produced from it being entirely in their own
hands and control, and plaintiffs having no means whatever of
keeping any account, the duty devolved upon the defendants to
keep an account, and their agreement to pay to tlie plaintiffs
the one-fourth of the profits implied an agreement to keep a
reasonably definite and accurate account.
"While w^e are of opinion that the doctrine of confusion of
goods is not to be applied so as to deprive them of the profits
of one-fourth of all the gas produced from the otber eigbtceu
v,-ells o^vned by them, yet the fact tluit negligence or fraud of
the defendants has made a determination of tlie exact product
of the Grimes well difficult and perliaps impossible, must cer-
tainly be deemed to cast on tliein the inconvenience and loss
which may arise from the diilicultics of the account, and not on
the plaintilts, who are not to blame for iheni.'^
We are at a loss to see any practical distinction between the
reasons for the rule adopted from the books by the master and
the reasons for the one announced by the court; nor can we see
910 American State Reports, A^ol. 101. [Pcnn.
any other rational method that could be adopted by the mas-
ter which would certainly reach none other than a righteous re-
sult.
There is but little difference between the master and the
court in the moral stamp put upon the conduct of the defend-
ants, ®' but a very wide difference in the result of the two
computations; by discarding his own computation in his first
report and adopting the court's in the second, he relieves de-
fendants of three-fourths of the award he first imposed upon
th.em. But in the second he treats defendants exactly as equity
would have treated them, if from the beginning there had been
a mutual agreement that the product of the Grimes well should
not be measured before it passed into the main, that then, for
years it might be commingled with the gas from tlie other wells,
and tlien with no means of approximating certainty, the plain-
tiffs' share of the profits should be computed. This is what
equity would have done if both parties had been equally inno-
cent, or rather, if both had been equally negligent. But the
adoption of the court's method flatly ignores the facts found
h} the master and from which the court does not dissent: The
cas was commingled by the fraud of defendants; in defiance
of plaintiffs' right, which they well knew, they wholly neglected
to keep any account of it. The master finds now that it is ut-
terly impossible to approximate the quantity; therefore, obey-
ing the peremptory instruction of the court, as was his duty,,
lie could not do other than make a somewhat arbitrary estimate
or guess at the quantity and so report. In doing so, he disre-
gards the facts which the law declares would impel him to
ailopt the principle on which his first report is founded, and,
therefore, the second report is not founded on fact or reason.
By the guessing method the chances of loss or gain between the
ii.nocent plaintiffs and the culpable defendants are even. By
ado])tiiig the court's method it is just as probable that defend-
ants will gain thousands of dollars' worth of plaintiffs' gas to
which they have no right as that plaintiffs will get any part of
the gas to which they have no right. This is the very situation
that arou>('? the indignation of equity, for plaintiffs did nothing
to bring it about and defendants did; hence comes into opera-
tion tlic jtrinciplc that the wrongdoer shall not profit by his
wrong and the innocent party shall not suffer by it.
The principal reason given by the learned judge for not adopt-
ing the first report of the master is, that he misapplies to the
Jan. 1904.] Stone v. Marshall Oil Co. 911
facts before him the doctrine of confusion of goods, because the
plaintiffs had no property in the gas as a product or ^^ chat-
tel, but only a right to one-fourth the profits on the sale of it
It is clear to us that this is too narrow a view of the power and
functions of either law or equity; it taints them with an im-
becility which would render them powerless in many cases to
remedy wrongs or vindicate rights. Although such a term as
"confusion of goods" is generally used, there is, in fact, prop-
erly no such doctrine as a ^'conf usion of goods" ; there is a fact
of confusion of goods, which, if committed with a fraudulent
motive, subjects the transaction to an inflexible rule, rigorously
enforced both at law and in equity, that the wrongdoer shall not
profit by nor the innocent party suffer from the wrong. It
would be impossible in reaching a righteous result that any one
particular method should be adaptable to the innumerable and
complex transactions of the business world, or exactly to all the
devices and devious ways of fraud.
Substantially, a like method is adopted with the same result
in settling the accounts of negligent and faithless trustees, who
have kept no accounts or have mixed indiscriminately the trust
funds with their own; equity does not fear wrong to the culpa-
ble trustee, but so shapes its decrees that no possible wrong
shall come to the innocent cestui qui trust. The same principle
i;; applied to the willful trespasser, who has mixed his own ore
or his own logs with those of his innocent neighbor. And as in
Kleppner v. Lemon, 197 Ta. St. 430, 47 All. 353, the case of
a wrongdoer who commingled the oil from his own land with
that of an owner from whom he leased and willfully neglected
to keep account of the respective products. Indeed, we can see
no room for distinction in the application of the principle be-
tween the Kleppner case and the one before us. Kleppner, by
his contract, was entitled to a royalty of one-eighth the oil
from one well on his own land; the lessee had other wells on
adjoining lands, then fraudulently commingled the oil from
all of them and kept no account of that from Kleppner's; it
was held that Kleppner was entitled to one-eiglith of the whole.
The definitions heretofore quoted happen to have had in view
a fraudulent commingling of chattels having a separate indi-
viduality, which might have been preserved if proper care liad
been taken and accounts kept by him on whom wa^ imposed
such duty, so that afterward, on settlement or adjustmont. the
"' value of each one"s share of the chattels could readily be as-
912 American State Reports, Vol. 101. [Penn.
certained according to the number of cattle, tons of ore, or gal-
lons of oil. If the chattels be willfully and fraudulently com-
mingled, no accounts kept or other means of determining each
one's share, there comes into operation the principle applicable
to all transactions affected by fraud, that the wrongdoer shall
not profit nor the innocent party suffer by the fraud. And the
more difficult it is, from the nature or species of the chattel, to
preserve the property right of the owner, the more imperative
is the duty upon him who is answerable to preserve, to the ex-
tent that lie is able, the evidence of the right. It makes no dif
fcrence in the application of the principle that plaintiffs were
entitled to onc-fourtli the profits of the Grimes well instead of
to one-fourth the gas. Defendants' motive in first attempting
the fraud was to get rid of paying one-fourth the profits of
the product; then, with distinct knowledge of, and actual no-
tice of, plaintiffs' claim, even by suit, they effectually smothered
any certain evidence of the extent of their answerability by neg-
lecting to keep accounts. Their only defense now is, we have
no accounts, and as the master practically finds, they resort to
guessing to determine the quantity of gas from the Grimes well.
'i'lie argument of appellees' counsel, to some extent ap])roved
by tbe court below, is, that by their contract they acquired title
!(• tbe gas. and therefore liad a right to commingle it with their
own. This argument evades the point at issue; the whole of
the gas was in their control and custody; by their relation to
the contract and to plaintiffs it was their moral and legal duty
to account to and pay to the plaintiffs one-fourth tbe profits.
1 bey willfully neglected to keej) accounts showing, even approx-
imately, the extent of their liability, and now ask, after putting
it out of their power to account, leave to guess at tbe amount
payal)!e to plaintiffs.
We think tbe facts that the entire product was by tbe contract
tl:e property of defendants, and tliat their rcs])onsibility consisted
only in tbeir duty to account for and pay over one-fourth tbe
juiifiis does not relieve tbeir conduct from the application of tbe
^anie priiicij)le as is applied to a fraudulent confusion of goods.
Tlierefore, tlie decree of tbe court setting aside tbe first rcjjort
f.[' llie master is reversed; the second report is set aside and tbe
"'" decree affirming it reversed; the appeal of J. B. Akin, C. \V.
Stone, R. B. Stone and A. J. Ifazeltine is sustained, and the
first report of the master is couiirmed absolutely.
Jan. 1904.] Stone v. Marshall Oil Co. 913
CONFUSION OF GOODS.*
I. Nature, Scope, and Effect of Confusion.
a. In General, 913.
b. Tortious Intermixture of Goods, 915^
c. Innocent Intermingling, 915.
d. Goods Susceptible of Identification, 915.
e. Property of Equal and Uniform Value, 916,
f. Property Whose Value can be Estimated, 916.
g. Property Commingled by Consent, 917.
h. Intermixture by Inevitable Accident or Vis Major, 917.
n. Goods and Property Confused.
a. Grain and Flour, 917.
b. Cattle, Horses and Fowls, 918.
c. Logs, Lumber, and Other Timber, 919.
d. Ore and Mineral, 920.
e. Oil and Gas, 920.
III. Persons Involved and Affected.
a. Third Persons Generally, 920.
b. Purchasers of Goods.
1. In General, 921.
2. In Case of Sale in Fraud of Creditors, 921.
c. Debtor and Creditor — Attachment and Execution, 922.
d. Mortgagor and Mortgagee.
1. In General, 922.
2, Purchaser of Mortgaged Goods, 923.
e. Principal and Agent. 923.
f. Bailor and Bailee, 924.
g. Husband and Wife, 924.
IV. Remedies and Their Enforcement.
a. Replevin, 924.
b. Damages, 925.
c. Demand, 925.
I. Nature, Scope and Effect of Confusion.
a. In General. — When there lias been such an intermixture of
goods owned by different persons that tl;e property of each can no
longer be distinguished, what is denominated a confusion of goods
has taken place: Ilesscltine v. Stockwell, 30 "Me. 237, 50 Am. Dec.
627; monographic note to Pulcifer v. Page, 54 Am. Dec. 589. Or, as
defined in the principal case, ante, p. 9(14, confusion of goods is the
willful and fraudulent intermixture of the chattels of one person with
the chattels of another, without the consent of the latter, in such a
way that they cannot be separated and distinguislie<l. There is lu)
mingling of property where one puts potatoes in one end of a treiu h
and separates them by a partition of hay from potatoes in the other
end of the excavation belonging to another person: Scott v. Schofield,
101 Iowa, 15, G9 N. W. 1127. A confusion of the profits or j)roce(> Is
of sales may be worked, so that the innocent party will be entith^l
to the whole, or to his proportionate share of the whole: Graham v.
Plate, 40 Cal: 593, 6 Am. Kep. 639. This principle is applied in the
*KKFhRENCB TO MONOGRAPHIC NOT! S
Title by accession: 54 Am. Dec. 583-r>97; 44 Am St. Rep. 114-448.
Am. St. Rep., Vol. 101—58
914 American State Eeports^ Vol. 101. [Penn.
case of a sale of mining claims which are not separately valuetl: Huff
V. Hardwick (Colo. App.), 75 Pac. 593.
The general rule is, that if a person having charge of the property
of others so confounds it with his own that the line of distinction
cannot be traced, all the inconvenience of the confusion is thrown upon
him who produces it, and it is for him to distinguish and identify
his own property or to lose it: Kreuzer v. Cooney, 45 Md. 582, 592.
See, too, Alexander v. Zeigler (Miss.), 36 South. 536; State v. Goll,
32 N, J. L. 285; Brakelcy v. Tuttle, 3 W. Va. 86. This rule is merely
one of evidence. "The wrongful mingling of one's own goods with
those of another, when the question of identification of the property
arises, throws upon the wrongdoer the burden of pointing out his
own goods; and, if this cannot be done, he must bear the loss which
results from it. It is but an application of the principle that all
things are presumed against the spoliator; that is to say, against one
who wrongfully destroys or suppresses evidence": Holloway Seed Co.
V. City Kat. Bank, 92 Tex. 187, 47 S. W. 95, 516. See, also. Little
Pittsburg Con. Min. Co. v. Little Chief Con. Min. Co., 11 Colo. 223,
7 Am. St. Rep. 226, 17 Pac. 760.
The doctrine will not be carried further in any ease than ncfossity
requires: Brown v. Bacon, 63 Tex. 595; Claflin v. Beaver, 55 Fed. 576.
It involves a forfeiture, and is never applied where it consistently
can be avoided: Keweenaw Assn. v. O'JS'cil, 120 Mich. 270, 79 N. W.
1S3. It must be an extreme case that will justify the taking of the
property of one person and giving it to another; whenever it is pos-
sible, therefore, to make a division of the property and give to each one
his share, a court will make such division: First Nat. Bank v. Scott,
36 Neb. 607, 54 N. W. 987. And yet, in the language of the court in
the principal case, ante, p. 904, a confusion of goods, if committed
with a fraudulent motive, subjects the transaction to an inflexible
rule, rigorously enforced at law and in equity, that the wron^rdoer
shall not profit by nor the innocent party sulVcr from the wrong.
The doctrine of tlie confusion of goods is coiniirclKMisively stated
by Justice Fowler in Robinson v. Holt, 39 N. IL 557, 75 Am. Doe.
233: "If tlie goods of several intermingled can be easily distin-
gnislioil and sejjarated, no change of property takes place, and each
jiarty may lay claim to his own. If the goods are of the same nature
and value, altbougli not capable of an actual separation by identify-
ing f-aeh particular, if the portion of each owner is known, and a
division can be made of equal proportionate value, as in the case
of a mixture of corn, coffee, tea, wine, or other article of the same
kind and quality, tlien each may claim his aliquot part; but if the
mixture is indistinguishal)Ie, because a new ingredient is formed,
not capable of a just appreciation and division according to the
original rights of each, or if the articles mixed are of diflVrcnt values
or quantities, and tlie original values or quantities canuot be deter-
Jan. 1904.] Stone v. Marshall Oil Co. 915
mined, the party who occasions, or through whose fault or neglect
occurs, the wrongful mixture must bear the loss," approved in Brooks
V, Lowenstein, 95 Tenn. 262, 35 S. W. 89.
b. Tortious Intermixture of Goods. — If an owner of goods will-
fully and tortiously mixes and confuses them with the goods of an-
other, so that they are indistinguishable and insusceptible of just ap-
preciation and division according to the rights of each owner, he by
whose fault or wrong or neglect the mixture is caused must bear the
whole loss, and the innocent party will take the whole property by
accession: Bums v. Campbell, 71 Ala. 271; Graham v. Plate, 40
Cal. 593, 6 Am. Eep. 639; Mayer v. Wilkins, 37 Fla. 244, 19 South,
(532; First Nat. Bank v. Schween, 127 111. 573, 11 Am. St. Rep.
174, 20 N. E. 681; Tufts v. McClintock, 28 Me. 424, 48 Am. Dec.
501; Eyder v. Hathaway, 38. Mass. (21 Pick.) 298; Jewett v.
Dringer, 30 X. J. Eq. 291; Seavy v. Dearborn, 19 X. IT. 351; Franklin
V, Gumersell, 9 Mo. App. 84; Williams v. Morrison, 28 Fed. 872; The
Idaho, 93 U. S. 575, 32 L. ed. 978; monographic note to Puleifer v.
Page, 54 Am. Dee. 591-593. It is not necessary, probably, for the in-
nocent person to prove that the mixture was actually made with the
intent to defraud him, for in most cases this would be ditticult to do:
Kust Land etc. Co. v. Isom, 70 Ark. 99, 91 Am. St. Eep. 08, 66 S, W.
434.
c. Innocent Intermingling. — But the foregoing doctrine of forfeit-
ure of the entire property in favor of the innocent party applies only to
wrongful or fraudulent intermixtures. There may be an intentional
intermingling, and yet no wrong intended. The intentional ami inno-
cent intermixture of property of substantially the same quality and
value does not change the ownership. And no one has a right to take
the wliole, but in so doing commits a trespass on the otlier owner.
He should notify him to make a division, or to take his own propor-
titm at liis peril taking care to leave to the other owner as nnn-h as
belongs to him: Hart v. Morton, 44 Ark. 447; Wingate v. Smith, 20
Me. 287; Eyder v. Hathaway, 38 Mass. (21 I'irk.) 2!>>; AVetlirrl.ee v.
Green, 22 Mich. 311, 7 Am. Eep. 653; Keweenaw .Vi^sn. v. O'Xfil, 120
Mich. 270, 79 X. W. 183; Davis v. Krum, 12 Mo. App. 279; Pirkering
V. :\Ioorc, 67 X. H. 533, 68- Am. St. Eep. 695, 32 Atl. S2S 31 L. K. A.
69S; Pratt v. Bryant, 20 Vt. 333; Brown v. Bacon, 63 Tex. ."!•.".. Sec,
further, the monographic note to I'ulcifer v. I'age, 54 .Vm. Dix'. 5't3-
594.
d. Goods Susceptible of Identification. — Moreover, tlio rule that
one may lose his own property by mixing it witli the prdjicitv df
another, applies only to cases where the property of one cannot lio
distinguished from that of the other, after the admixture: Bahhviii
V. Porter, 12 Conn. 473, 483; Frost v. Willard, 9 Barb. 440; Holbrook
V. Hyde, 1 Vt. 280. There is no forfeiture if the goods are of such
a cliaraeter that the property of each can be identilied and sojiarated:
916 American State Eeports, Vol. 101. [renn.
Capron v. Porter, 43 Conn. 383; Claflin v. Continental Jersey Works,
85 Ga. 27, 11 S. E. 721; Mooro v. Bowman, 47 N. H. 494. And this,
is true although the intermixture was fraudulent: Allen v. Kirk, 81
Iowa, 658, 47 N. W. 906; Claflin v. Beaver, 55 Fed. 576.
e. Property of Equal and Uniform Value. — ^Again, one will not
forfeit his property by commingling it with the property of another
when the goods, though indistinguishable, are of equal and uniform
value; that is, when the mixture is approximately homogeneous. In
this case the remedy is division in kind or compensation for actual
loss: See Claflin v. Continental Jersey Works, 85 Ga. 27, 11 S. E. 721;
Keid v. King, 89 Ky. 388, 12 S. W. 772; Gilman v. Hill, 36 N. H. 311;
"Innocent Commingling," ante. This rule finds application in t'he
case of confusion of grains, such as corn or oats or wheat. Each
owner may claim his aliquot part of the whole mass of grain: Sims
V. Glazcner, 14 Ala. 695, 48 Am. Dec. 120; Muse v. Lehman, 30 Kan.
514, 1 Pac. 804; Stone v. Quaal, 36 Minn. 46, 29 N. W. 326; Kauf-
mann v. Schilling, 58 Mo. 218; Adams v. Meyers, 1 Saw. 306, Fed.
Cas. No. 62. This doctrine is applied to manure in Pickering v.
Moore, 67 N. II. 533, 68 Am. St. Rep. 695, 32 Atl. 828, 31 L. R. A.
698. Even in the case of a wrongful and fraudulent intermixture,
there is no forfeiture, if the goods intermixed are of equal value and
quality, and the proportion of the whole which each party originally
owned is known: Ilcsseltine v. Stockwell, 30 j\Ie. 237, 50 Am. Dec.
627; monograi)liic note to Pulcifer v. Page, 54 Am. Dec. 591; com-
pare Stephenson v. Little, 10 Mich. 433. But one who willfully con-
founds his goods with like goods of another wdll lose the whole, un-
less he can prove the true quantity Ijelonging to himself: Starr v.
Winegar, 3 I! tin, 491. Every intendment and presumption is against
the wrnngdinT. The rule ns stated in Osborne v. Cargill Elevator Co.,
62 Minn. 400, 64 N. W. n:i5, is this: "Where goods of the same kind
and value, belonging to different owners, are intermingl(>d and con-
fused by one owner willfully, but not in bad faith, the other owner
does not thereby become the owner of the whole; but when the ]»art
of the whole mass belonging to the latter is, by reason of such con-
fusion, made uneertain, every reasonable doubt as to the amount of
his share must be resolved in his favor."
f. Property Whose Value can be Estimated. — When a person min-
gles his goods with those of others innocently or by mistake, if he
cati sliow their value or their jiroj)ortion of the value to the whole,
ho should 1)0 aljiiweij to do so, and his projterty should not be forfeited:
Claflin V. f'oiit iiienlal .Jersey Works, 85 Ga. 27, 11 S. E. 721. Said
the court in (iunter v. .laiTies, 9 Cal. 6b'?, 6(J0: "When articles of
different values are inixi'cl, produeing a third value, the inno-
cent party is allowi^l to take the whole only in case he cannot
tell the original value of his property. Even in case of such a
mixture, if the original value of the property mixed can be ascer-
Jan. 1904.] Stone v. Mabsiiall Oil Co. 917
tained, the party can only claim that value, except the mixture he
willfully made with intent to injure, or from gross negligence." In
case damages are awarded the injured party, the measure thereof
seems to be the highest value at which his property reasonably can
be estimated: See "Damages," post.
g. Property Commingled by Consent. — "When the goods of two or
more persons are, by consent, intermixed so that they can no longer
be distinguished, the owners have an interest in common in propor-
tion to their respective shares. In such a case the relation of the
parties is that of contract, and the presumption arises that they
agreed to hold the mass as tenants in common. This doctrine finds
frequent application where grains are intermixed: Low v. Martin, 18
111. 286; Van Liew v. Van Liew, 36 N. J. Eq. 637, 641; Inglebright v.
Hammond, 19 Ohio, 337, 53 Am. Dec. 430; monographic note to Pulci-
fer V. Page, 54 Am. Dec. 590, 591.
h. Intermixture by Inevitable Accident or Vis Major. — Where an
indistinguishable confusion of goods results from inevitable accident
or vis major, the original owners become tenants in common of the
mass, sharing the loss proportionately. Thus where a ship is
wrecked, and a part of its cargo of cotton lost, and the remainder
intermixed beyond identification, the owners are tenants in common
of the bales saved, sharing the loss and expense pro rata: Spcnee v.
Union Marine Ins. Co., L. R. 3 C. P. 427. So, where oil leaks from
the casks in the course of shipment and is collected, it belongs to the
original owners as tenants in common: Jones v. Moore, 4 Younge & C.
351. This principle is applicable to wood floated by a freshet into
one indistinguishable mass: Moore v. Erie Ry. Co., 7 Lans. 39; and
also, perhaps, to cattle on the range confused through accident or the
wrong of a third person: Belcher v. Cassidy Bros. Livestock Com-
mission Co., 26 Tex. Civ. App. 60, 62 S. W. 924.
II. Goods and Property Confussd.
a. Grain and Flour. — One may mix his grnin with grain bolfin^inj;
to others under such circumstances that he will lose all claim there-
to: Samson v. Rose. 65 N. Y. 411. Howover, whore the grain is of
uniform value, kind, and quality, and the quantity contributed by
each to the mass is known, the parties are considered as tenants
in common, and each may claim his aliquot part of tlie entire mass:
See "Property of Equal and Uniform Value," ante; Henderson v.
Lauck, 21 Pa. St. 339. And if the intermingling is by consent, then
the several owners have an interest in common in proportion to their
respective shares. See "Property Commingled by Consent," ante.
The holders of receipts for grain of the same kind and quality de-
posited in a warehouse are ordinarily tenants in common of the
mass: Dole v. Olmstead, 36 111. 150, 85 Am. Dec. 397; Drudge v.
Loiter, 18 Ind. App. (7li4, 63 Am. St. Rep. 339, 43 N. E. 34; Arthur
018 American State Reports, Vol. 101. [I'enn.
V. Chicago etc. R. R. Co., 61 Iowa, 648, 17 N. W. 24; Hall v. PiUs-
bury, 43 Minn. 33, 19 Am. St. Rep. 209, 44 N. W. 673, 7 L. R. A.
529.
Where wheat has been delivered to a mill and wrongfully con-
verted into flour and stored with other flour belonginjr to the mi'I
owner, the owner of the wheat is entitled to such portion of tho
flour as the grain probably would produce: First Nat. Bank. v. Scott,
36 Neb. 607, 54 N. W. 987. See, also, Inglebright v. Hammond, 19
Ohio, 337, 53 Am. Dec. 430; note to Pulcifer v. Page, 54 Am. Dec.
590.
b. Cattle, Horses and Fowls. — It has been said that the doctrine
relatincT to confusion of goods has no application to horses and
cattle that may be readily identified: See Ilolbrook v. Hyde, 1 Vt.
286; McKnight v. United States, 130 Fed. 659; "Goods Susceptible
of Identification and Separation," ante. It is obvious, however,
that livestock on the range may become so intermingled as to render
identification impossible. In Belcher v. Cassidy Bros. Livestock
Commission Co., 26 Tex. Civ. App. 60, 62 S. W. 924, where mort-
gaged cattle were so confused that it became impossible to identify
the precise animals covered by the mortgage, the court said; "Wliile
a mixture of cattle on the range may not be altogether analogous to
a mixture of cotton, corn, coffee, tea, wine, etc., we nevertheless
are of opinion that equity is not without power to afford a remedy
in such case for a confusion resulting from accident or tlio wrong of
a third person, where, as in this instance, the proportion of interest
of each claimant may be reasonably ascertained notwithstanding
the confusion." It was held, however, that it was error to direct
tlic sheriff to partition tlie henl by seizure and sale as umler ex-
ecution, tho fair average of all the animals; for the power thu-5
i'onferred was judicial, and one whicli the court, and not the sli(>riff,
must exercise.
If one phiees his brand upon anotlicr'a cattle so that the dis-
tinction between them cannot be traced, he sliould bo subjected to
tlie loss of liis property. Upon him rests the task of identifying
or distiniruishiiig the animals: Johnson v. Ilocker (Tex. Civ. App.),
;;9 S. AV. 401).
■\VliiTe one's fowls mingle with his neighbor's, lie has a right to
his own, though ho cannot identify them all; and liis neiglibor's
offer to deliver him those he can identify, and any others he may
select to a ccrt'iin niiiiiber, less than he claims and less than his
testimony tends to show him entitled to, whicli he refuses, does not
satisfv his ri^lit. If the neighbor shuts up the entire flixdc, and
refuses to let them run at largo so tliat the fowls may be identified
and distinguisheijj this amounts to a conversion: Leonard v. Bel-
knap. 47 Yt. 602.
Jan. 1904.] Stoxe v. Marshall Oil Co. 919
c. Logs, Lumber and Other Timber.— Confusion of goods may
occur by the commingling of logs, lumber, shingles, or other timber:
Hesseltine v. Stoekwell, 30 Me. 237, 50 Am. Dec. 627; Bryant v.
Ware, 30 Me. 295; Starke v. Paine, 85 Wis. 633, 55 N. W. 185.
There can, however, be no confusion of logs, in the legal sense of
the term, when they are marked so that their identity is not lost:
Goff V. Brainerd, 58 Vt. 468, 5 Atl. 393. Where one takes an-
other's logs, saws them into boards, and mixes them with his own
lumber so that they cannot be distinguished, with the fraudulent
intent of depriving the owner of his property, the latter may main-
tain replevin, it has been held, for the whole pile of boards:
Wingate v. Smith, 20 Me. 287. The injured party may replevy thd
whole body of mixed lumber where one willfully and indiscrim-
inately intermixes his own lumber wnth that of another so that
they cannot be distinguished, and where the two lots so mixed are
of different qualities or values: Jenkins v. Steanka, 19 Wis. 126, 83
Am. Dec, 675; Root v. Bonnewa, 22 Wis. 539. See the note to
Puleifer v. Page, 54 Am. Dee. 592. The owner of lumber sawed from
logs Avhieh the manufacturer has mingled with his own logs of like
quality may reply out of the common mass of the lumber made from
all the logs, an amount not exceeding his contribution thereto: Bent
V. Hoxie, 90 Wis. 625, 6^ N. W. 426.
Where one has a pile of mill logs of a particular mark on a land-
ing, and another person draws logs into the same pile and puts the
same mark upon them, the latter can maintain replevin for such
logs only as he can identify: Dillingham v. Smith, 30 Me. 370.
Where logs of the same kind, value, and mark become intermixed,
without the fault of either of the owners, before they reach the
mill, each may claim his specific quantity of the lumber sawml there-
from, though he may be unable to identify his specific logs: Martin
v. Mason, 78 Me. 452, 7 Atl. 11.
If a person innocently cuts another's timber and mingles the
logs with his own, the owner of the timber may reclaim from the
common mass a quantity equal in amount to the logs cut, and of an
average quality: Gates v. Eife Boom Co., 70 Mich. 309, 3S X. W.
245. See, too. Stearns v. Raymond, 26 Wis. 74; El<lred v. Oconto
Co., 33 Wis. 133. So, if one person cuts another's timl)or nn<l eon-
verts it into staves, wliich ho mingles witii otliers, tlie owner, be-
ing unal.le to identify his property, may maintain rejilevin for a
j)ortion of the common lot equal to the number of staves taken fro:ii
his land: Peterson v. I'olk, G7 ^'.liss. 163, 6 South. 615.
If one by mistake cuts logs upon the land of another, and after
discovering his mi'^take mingles them v.-ith his own and lloats them
down the stream, the owner may retake his logs, or such an avernLr(>
number out of the mass as will replace those lost: Arpin v. Bureh,
&9< Wis. 619. 32 X. W. G'Sl,
920 American State Reports, Vol. 101. [Penn.
Where a person, in filling his contract to deliver a certain number
of railroad ties, delivers an amount in excess of the number called
for, which the buyer refuses to accept, and, by the act of the first
party and without the fault of the buyer, the surplus ties become
intermingled with the accepted ones so as to be indistinguishable
therefrom, the buyer has a right to take and use from the common
mass his proportionate share, without restriction in choice to any
particular portion of the lot, provided there is no advantage in
selection as to quality, value, or otherwise: Chandler v. De Graff,
25 Minn. 88.
d. Ore and Mineral. — According to Hawkins v. Spokane Hydraulic
Min. Co., 3 Idaho, 650, 33 Pac. 40, where a mining corporation works
a mining claim in which it has a minority interest, against the pro-
test of the majority interest, and mingles with the gold extracted
therefrom a portion of gold from its own claim, without the consent
of the other party, and the quantity and value of such portion are
unknown, it cannot recover the gold so mingled. One who mixes
another's coal with his own, and sells the mass, cannot set up that
the coal mixed with his own was of inferior quality and thus dimin-
ished the price received, but the innocent party is entitled to the
full value of his coal: Lord Eokeby v. Elliott, L. E. 13 Ch. Div.
277.
e. Oil and Gas. — Where one person mixes with his own oil the oil
of another, the latter may replevy his aliquot part of the mixture,
at least if the character of the oil has not been so essentially changed
by the confusion that one barrel is not equivalent to another. If a
lessee, to evade the payment of royalties under an oil and gas lease,
instead of operating the property in accordance with his covenants,
drills a well on adjoining land, so as to drain the oil and gas under
the leased land and to make it impossible to determine the amount
drawn from the lessor's property, the lessee is bound to pay royal-
ties on the entire product: Kleppner v. Lemon, 107 Pa. St. 430^ 47
Atl. 353. And if a natural gas company fraudulently commingles
^as from leased property with gas from other properties under its
control, keeping no account thereof, it is bound to account to the
owner of the leasehold, who is entitled to one-fourth of the profits,
therefrom, for one-fourth of the profits from the whole volume of gas
confused. See the principal case, ante, p. 904.
III. Persons Involved and Affected.
a. Third Persons Generally. — The general rule that as between an
innocent person and a wrongdoer, where the property of the former
has been mingled with and cannot be separated from that of the
latter, the entire bulk may be adjudged to the former, should not
be applied where the interests of other persons intervene, and full
protection can otherwise be given to the innocent party whose goods
Jan. 1904.] Stone v. Marshall Oil Co. 921
have been -wrongfully used: National Park Bank v. Goddard, 30 N.
Y. Supp. 417, 9 Misc. Eep. 526.
If a mortgagor of chattels, without the consent of the mortgagee,
confuses the goods with those of a third person, and the latter, with
the consent of the mortgagor, converts the common property into
money, with actual or constructive knowledge of the facts, such
third person is answerable to the mortgagee as for money had and
received, though only to the extent of the amount due on the mort-
gage indebtedness: Illinois Trust etc. Bank v. Alexander Stewart
Lumber Co., 119 Wis. 54, 94 N, W. 777.
Where a miner allows his tailings to mingle with those of other
miners, this does not give to a stranger a right to the mixed mass:
Jones V. Jackson, 9 Cal. 237.
b. Purchasers of Goods.
1. In General. — Ordinarily, when a person wrongfully confuses his
goods with those of another, an innocent purchaser from the wrong-
doer acquires no greater rights than his vendor had: Blodgett v.
Seals, 78 Miss. 522, 29 South. 852. Cases may arise, however, where
a bona fide purchaser of confused goods should be protected: Jolm-
Bon V. Johnson, 49 Mich. 641, 14 N. W. 673. See, further, the note
to Gaskins v. Davis, 44 Am. St. Rep. 447-449.
2. In Case of Sale in Fraud of Creditors. — The intermingling by
a furniture dealer, with his other goods, of furniture sold him in
fraud of the seller's creditors, without an unlawful motive on the
part of the buyer, does not entitle the seller's creditors to attach
the buyer's entire stock of goods, without requesting him to point
out the goods held under such sale: Smith v. Sanborn, 72 Mass. (6
Gray) 134. And, if one buys goods, knowing the sale to be in fraud
of creditors, and mingles them with his own, he does not thereby
forfeit his whole stock to the vendor's creditors; but if he refuses
to point out the goods, the creditors may levy on an amount of the
confused property sufficient to equal the goods of the vendor: Evans
V. Reeves, 6' Tex. Civ. App. 254, 26 S. W. 219. The rule in such
cases, according to Bergson v. Dunham (Tex. Civ. App.), 40 S. W.
17, is that if a person fraudulently purchase goods, and mingles
them with his own so that they cannot be identified, the defrauded
creditor has the right to seize so much of the goods as is necessary
to satisfy his claim, provided he does not seize goods exceeding In
value those purchased. If a party to a scheme to defraud creditors
purchases goods and mixes them with his own, it is his duty, pri-
marily, to at least inform an oflicer seeking to levy an attachment
against the fraudulent vendor that he has made additions to thn
stock; and if he fails to make known that ho has other goods mixetl
with those be claims under the fraudulent purchase, which he can
identify, and permits the officer, in ignorance of the facts, to levy
923 American State Eeports, Vol. 101. [Penn.
upon all the goods, he may be estopped to assert that a part of the
goods levied upon are not subject to the levy: Reiss v. Hanchett,
141 111. 419, 31 N. E. 165. See, also, Blotcky Bros. v. Caplan, 91 Iowa,
352, 59 N. W. 204.
c. Debtor and Creditor — Attachment and Execution. — In the ease
of the levy of an execution or attachment against a debtor on his
property, which another person hag fraudulently confounded with
his own, if the latter would reclaim and save his own property, the
burden is on him to distinp^uish it from that of the debtor: Weil v.
Silverstonc, 69 Ky. (6 Bush.) 698 (citing Treat v. Barber, 7 Conn.
274; Smith v. Sanborn, 72 Mass. (6 Gray) 134; Kobinsou v. Holt, 39
N. H. 557, 75 Am. Dec. 233); Edridge v. Fidelity & Deposit Co.
(Tex. Civ, App.), 6"3 S. W. 955. Where goods of a debtor are mixed
with those of another, but in such a way that they are distinguish-
able, it is the duty of the officer about to levy an attachment to
make reasonable inquiries in order to distinguish them before he is
justified iu talcing the goods of the other person; but where the
goods are mingled in one indistinguishable mass, and he who has
confounded his with the debtor's does not point out his own, the
officer may take them all: Shumway v. Rutter, 8 Pick. 443, 19 Am.
Dec. 340; Robinson v. Holt, 39 N. H. 557, 75 Am. Dec. 233; Taylor
v. Jones, 42 N. H. 25; monographic note to Pulcifer v. Page, 54 Am.
Dee. 593, where this question is further discussed; "Sale in Fraud
of Creditors," ante. Though the goods of a debtor are mixed with
tliose of a stranger without the latter 's knowledge, it seems the
sheriff may attadi and hold the whole until the stranger identifies
his property and demands a redelivery: Lewis v. Whittemore, 5 X.
H. 364, 22 Am. Dec. 466. But where the owner can distinguish his
goods, and points them out to the officer, the latter will be a tres-
passer if he takes them: Yates v. Wormwell, 60 Me. 495.
When a debtor wrongfully produces a confusion of goods, and
thereby loses his right to the whole, it seems his creditors liave no
right or claim to levy an attachment upon it: Beach v. Schmult/.,
20 III. 1S5. So, where the creditors of an agent who has forfeited
his goods by confusing them with his principal's, cannot subject
them to the payment of their debts: Brooks v. Lowenstein, 95 Tenn.
202, 35 S. W. 89.
d. Mortgagor and Mortgagee.
1. In General.— A confusion of mortgaged goods by the mort^'agor
with other goods owned by liim makes the wliole mass, prima "facie
at least, subject to the lien and operation of the mortgage: Burns v.
Campbell, 71 Ala. 271; EdclhofT v. IIomer-Miller Mfg. Co., 86 Md.
595, 39 Atl. 3U; Dunning v. Stearns, 9 Barb. 630. But where the
property is of like kind and equal value, a more equitable rule would
be to give each party his due proportion, rather than to subject the
Jan. 1904.] Stone v. Marshall Oil Co. 933
entire property to the mortgage: Mittenthal v. Heigle (Tex. Civ.
App.), 31 S. W. 87. Where the mortgagor of a stock of jewelry and
fixtures and subsequent purchasers thereof commingle new goods
therewith so that the mortgagee cannot identify the goods not
covered by the mortgage, he may be justified in selling the entire
stock, and will not be liable for conversion in the absence of a de-
mand for the goods before action is brought: Gibson v. Mclntire,
110 Iowa, 417, 81 N. W. 699, citing Diversey v. Johnson, 93 111. 547;
Willard v. Eice, 11 Met. 493, 45 Am. Dec. 22(7; Adams v. Wildes,
107 Mass. 123; Fowler v. Hoffman, 31 Mich. 215. And one selling
goods to a mortgagor, with knowledge that he probably will mix
them with other goods to which the mortgagee is entitled, has the
burden of designating the goods: Kreth v. Kogers, 101 N. C. 2G3,
7 S, E. 682. The obligation rests on one who unlawfully converts
goods upon which there is a mortgage, and mingles them with other
similar property free from encumbrance, to separate the goods:
Stuart v. Phelps, 39 Iowa, 14. See, also, "Third Persons Gener-
ally," ante. Trespass does not lie against a mortgagee for taking
chattels, mixed with his own so that they cannot be distinguished
by another, who refuses to separate them: Fuller v. Page, 26 111. 358,
79 Am. Dec. 379. A mortgagee, wliere the goods are confused, or-
dinarily acquires no better title than the mortgagor had: Lance v.
Butler (N. C), 47 S. E. 488.
If mortgaged goods are, with the presumed permission of the
mortgagee, confused with goods subsequently acquired by the mort-
gagor, the rights of third parties should not be affected thereby:
Hamilton v. Eogers, 8 Md. 301. Where after-acquired goods have
been confused with goods covered by a mortgage, with the knowl-
edge and for the benefit of the mortgagee, a judgment creditor of the
■mortgagor may lawfully levy upon and sell the whole or so much
thereof as is necessary to satisfy his debt: First Nat. Bank v.
Lindenstruth, 79 Md. 136, 47 Am. St. Eep. 3(j6, 2S Atl. 807.
2. Purchaser of Mortgaged Goods.— Where a mortgagor of goo.ls
purposely or carelessly mixes tlieni with hig own and then sells the
whole it has been held that the mortgagee may replevy tlio whole
from the pureliaser, if the goods cannot be distinguished: Adams v.
Wildes, 107 Mass. 123. To the same effect, see Willard v. Eice, 11
Met. 493, 45 Am. Dec. 226. If the mortgagor mingles the property
with goods of a third person of like quality and value so that separa-
tion is impossille, tlie mortgagee may take under foreclosure his
aliquot pfirt of tlie entire mass in the possession of a purchaser:
Home V. Hanson, (5S X. 11. 201, 44 Atl. 292.
e. Principal and Agent. — Tf an agent confounds his own property
with that of his principal, he does so at his own risk. Tlie Unrdeii
is on him to show which is his own, and if this cannot be done, ho
must ordinarily lose what he has coutributeJ: Hall v. I'agt^ 4 G;u
924 American State Reports^ Vol. 101. [Penn.
428, 48 Am. Dec. 235; Hooley v. Gieve, 9 Abb. N. C, 8; Lance v.
Butler, 135 N. C. 419, 47 S. E. 488; Yates v. Arden, 5 Cranch C. C.
526, Fed. Cas. No. 18,12(5. And attaching creditors of the agent
occupy no more favorable ground than the agent himself: Brooks
V. Lowenstein, 95 Tenn. 262, 35 S. W. 89.
If an agent mingles his own funds with his principal's, he must
disclose the amount of his money, otherwise his principal will take
all: Atkinson v. Ward, 47 Ark. 533, 2 S. W. 77. No personal re-
sponsibility attaches to the act of an agent in mingling his own funds
with those of his principal, when he does so in good faith, and no
detriment results to the principal: Wood v. Cooper, 49 Tenn. (2
Heisk.) 441. It is said that an agent mav not mingle his funds with
his principal's, and then hold the latter responsible for the deprecia-
tion of the money in his hands: Webster v. Pierce, 35 111. 158.
f. Bailor and Bailee. — Where the bailee of property so commingles
it with his own that its identity cannot be traced, all the inconven-
ience of the confusion is thrown upon him; but if the owners have
consented to the commingling, each remains the owner of his share
in the common stock: Bretz v. Diehl, 117 Pa. St. 589, 2 Am. St. Eep.
706', 11 Atl. 893.
g. Husband and Wife. — When a husband has mortgaged crops
growing on his own and his wife's land, and some of them are inter-
mingled and mixed after his death so that they cannot be distinguished
or divided, the loss, as between the wife and the mortgagee must
fall upon her as the one entitled to the possession and as the one
through whose fault or neglect the wrongful mixture has occurred,
although she would otherwise be entitled to the whole of the crop
grown on her land: Wells v. Batts, 112 N. C. 283, 34 Am St. Kep.
506, 17 S. E. 417.
IV. Remedies and Their Enforcement,
a. Eeplevin. — Where there has been a confusion of goods so that
the innocent party is entitled to the entire mass he may replevy the
same: Jenkins v. Steanka, 19 Wis. 126, 88 Am. Dec. 675. And while
replevin does not usually lie if the property sought to be recovered
is not susceptible of identification and separation so as to be seized
in kind, still, wliere goods of the same general kind and value are
confused, although not susceptible of an actual separation by identify-
ing each particle, each party may claim his aliquot part, and enforce
his claim by an action in replevin. This rule has been recognized
in the case of a confusion of grain: Kaufmann v. Schilling, 58 AIo.
218; Henderson v. Lauck, 21 Pa. St. 359; and in the case of a con-
fusion of staves: Kust Land etc. Co. v. Isom, 70 Ark. 99, 91 Am. St.
];«'p. 68, 66 S. W. 434; and, also, where logs are confused: Young v.
iMiles, 20 Wis. 615; Eldred v. Uconto Co., 33 Wis. 133. See, further
Jan. 1904.] Stone v. Marshall Oil Co. 925
"Property of Equal and Uniform Value"; "Logs, Lumber, and Other
Timber."
b. Damages. — In case damages are given the owner of goods whicli
another person has so confounded and confused with his own that
identification and separation are impossible, the measure thereof, it
is said, will be the highest value at wliich the property reasonably
can be estimated: Little Pittsburg Con. Min. Co. v. Little Chief Con.
Min. Co., 11 Colo. 223, 7 Am. St. Eep. 226^ 17 Pac. 760; Hart v. Ten
Eyck, 2 Johns. Ch. 62. The measure of damages for the conversion
of property by mistake, at the place where it was about to be sold, in
case the defendant removes it to another town and mixes it with other
similar property so that it cannot be identified, is the value of the
property at the place and time of conversion, with such increase as
it may have received from fluctuations in the market and other
causes independent of the defendant's acts: Weymouth v. Chicago
etc. Ky. Co., 17 Wis. 550, 84 Am. Dec. 763.
c. Demand. — Where the plaintiff intermingles the defendant's
logs with his own, and the defendant, being unable to identify his
logs, but in good faith, intending to retake only his own, actually
takes more, he is not liable as a wrongdoer until the plaintiff points
out his property and demands it: Smith v. Morrill, 56 Mc. 566. And
where one suffers his goods to be so mingled with those of another
that an ofiicer having a writ against those of the other cannot dis-
tinguish them, he cannot maintain an action against the officer alter
he seizes them, until notice and a demand and refusal: Smith v.
Welch, 10 Wis. 91. If a person's goods are mingled with a debtor's
and the entire mass is levied on, it is incumbent on him to claim his
particular property and assert his claim thereto; otherwise he may
be held to have waived his riglits: Zielke v. Morgan, 50 Wis. 560,
7 N. W. 651.
92 G American State Reports^ Vol. 101. [Penn.
SPARKS V. HURLEY.
[208 Pa. St. 166, 57 Atl. 364.]
GIFT. — The Acceptance of a Gift may be Presumed, (p. 928.)
GIFT of Stock by Transfer on Books. — A Husband may make
a gift of stock to his wife by a transfer of an account from his
name to hers, upon the books, although she does not know of it at
the time and does not then accept it. (p. 929.)
TROVER — Sale of Stock by Broker. — If a Husband transfers
an account with a stock broker from his own to his wife's name, she
may maintain an action for trover and conversion against the broker,
if he, without notice to her, sells securities in the account for the
husband's debt. (p. 930)
E. C. Shapley and John G. Johnson, for the appeHants.
Ellis Ames Ballard and Rufiis E. Shapley, for the appellee.
170 POTTER, J. This was an action of trover and conver-
sion to recover the value of nine hundred shares of capital
stock of the Consolidated Lake Superior Company. The plain-
tiff, Julia M. Sparks, was the wife of Edward K. Sparks, and
the defendants, William H. Hurley, Jr., & Company are stock
'brokers doing business in the city of Philadelphia. Plaintitf
alleged that on October 28, 1901, Edward K. Sparks, her hus-
band, who had been a customer of the defendants' firm, arranged
with them to open an account for her under the name of J. M.
Sparks, and tliat with their consent and approval, he trans-
ferred to the new account seven hundred shares of Consolidated
Lake Superior stock. At tbo same time he gave to them one
lumdred additional shares of the same stock to be credited to
tbo J. ]\r. Sparks account; and some two montbs later deposited
one hundred shares more with them on her account, making
nine bundred shares in all. This stock was held su1)ject to,
and was security for, loans made by defendants thereon amount-
ing to $19,000.
The account was accepted by defendants and entered upon
tbeir books in accordance with tbis arrangement. It did not
ajipear tbat tbo |)]aintiff lierself was informed of the transaction
until tlie following April, after the stock had been sold. But
prior to tbe sale the defendants sent to her at least two state-
ments of the aecount addressed to "^Irs. J. M. Sparks." On
April IS and 19, 1902, tbe defendants. Avithout notice to the
plaintiff, or anv previous demand Tipon ber for payment of the
loans for which tbe stock was held bv them as collateral, sold
Jan. 1904.] Sparks v. Hurley. 927
the entire nine hundred shares, realizing sufficient to pay tho
amount due them and to leave a balance of $662.89. On April
30, 1902, Mrs. Sparks first learned of the transaction from her
husband, and that the stociv had been sold; and on May 3,
1902, she tendered to defendants the amount due to that date
upon the loans and demanded the surrender of the stock, which
was refused. She then broufrht this action for damages, alleg-
ing the conversion of the stock.
The defendants claimed that they had had no business re-
lations whatever with the plaintiff, that all their dealings had
^"^^ been with Edward K. Sparks on his own individual account;
that the J. M. Sparks account was opened, at the suggestion
of E. K. Sparks, merely for the purpose of having a separate
account of this particular stock, but that there was no change
in the ownership of the stock intended; that they were not
informed and did not know that J. M. Sparks was the name of
Mrs. Sparks or of any existing person, that the statements
made out to "Mrs. J. M. Sparks" were addressed in that way
inadvertently by one of their clerks; that they had frequently
notified E. K. Sparks to call at their office and requested him
to put up additional collateral; that the sale of all his securi-
ties, including the J. M. Sparks stock, still left him nearly
$3,000 in their debt.
Upon the trial the court below sul)mitted to the jury the
question whether the plaintiff hy virtue of what took place be-
tween her husband, ]\rr. Sparks, and the defendants, became
tlie owner of the securities in question, and the bona fide owner
of the account, or whether the arrangement was simply a fic-
titious one imder which it was understood by botli ]iarties that
the real ownership of the stock was to be left in ^\v. Sparks.
The court declined to give hinding instructions for tlie de-
fendants, but reserved the question of law wliotlier there was
any evidence on which the plaintiff could recover. Tlie jury
found for the plaintiff in the sum of $8,615.42, i)eing tlie value
of the stock on the day the tender was made, loss ])laintiir's
indebtedness to defendants, and the court in Imuk disniissi'd
the motion of defendants for judgment in their favor on the
point reserved and entered judgment upon the verdit-t.
The assignments of error are not sperilically jiressed in the
argument, but counsel for appellants urge goncfnlly that the
plaintiff showed no right to recover. The jury ha\e foujid,
however, as a matter of fact, in answer to tlio <|Ui'.-tions sul)-
mitted to them, that ^frs. Sparks was the real owjut of the
928 American State Eeports^ Vol. 101. [Penn.
securities, and that the account in question was accepted by
the defendants and was being carried upon tlieir books for her.
In support of this finding there is evidence that the defendants,
in the regular course of their business as brokers, permitted
the husband to transfer the account to the name of his wife,
and in lieu of the liability to him, there was substituted the
liability to account to her, and that they accepted at the same
^'^ time a good consideration in the shape of additional secur-
ity; that they rendered statements of the account thereafter in
her name, and received at a subsequent time additional margin
and receipted for it in her name. It also appears that they
subsequently sold these securities ^\^thout her knowledge or con-
sent and without notice to her husband as to this account, who
was admittedly her agent with respect to its care and manage-
ment.
It is not the husband who here denies the right of the wife to
these securities, but it is the brokers who at the time it was made
assented to the transfer upon their books and the opening of the
new account in the name of the wife. The defendants need
not have assented, and presuma1)ly they would not have done so,
had the transaction impaired the account of the husband, or
affected it in any injurious manner. But counsel for appellants
now urge that tliere could be no valid gift to the wife of the
account or of the margin in the securities represented, because
she did not know of it at the time it was made, and did not then
accept it. But the acceptance of a gift may be presumed. In
Smith V. Bank of Washing-ton, 5 Serg. & 11. 318, a fatlior exe-
cuted a transfer of bank stock to his daughter, then at distance,
without her knowledge, and delivered it to the casliier of the
bank for her use. Chief Justice Gibson said: "The transfer
was made according to the mode establislied under the act of
incori)oration, and was good without an express assent of the
daughter. Tliere was a good consideration, and as the subject
matter was incapable of passing by actual delivery, the daugh-
ior's a.^sont, tlie grant Ix^ing beneficial to her, will be presumed."
In Allen V. :^K.Masters, 3 Watts, 181, this court said: "Tt
does not follow in the present insbmce that there may not
liave been a gift to ]\[rs. Jones without her being informed of
it." And the court further said (page 187) : "The ignorance
of a grantee will not inij)ede the operation of a conveyance, his
assent being presumed." And in ITostctter v. ITollinger, 117
Pa. St. GOG, 12 Atl. 7^1, we find: "It is well set'tled in a series
of decisions, that he for whose benefit a promise is made, may
Jan. 1904.] Sparks v. Hurley. 929
maintain an action upon it, although no consideration pass
from him to the defendant, nor any promise from the defend-
ant directly to the plaintiff: See Hind v. Holdship, 2 Watts,
104, 26 Am. Dec. 107. As a general rule, a plaintiff cannot
enforce a contract to which he is a stranger, yet a defendant
^''^ cannot withhold property of the plaintiff merely because
he received it from a tliird person."
It was not necessary in the present case that any express
promise to account should be shown. The acceptance of the ac-
count and opening it in the name of the plaintiff upon the
books of the defendants, in accordance with the usual and well-
known custom in that line of business, created a liability to pay
the amount found due from the transaction.
We must assume that the finding of the jury established the
contention of the plaintiff tliat she was the party intended to
be benefited by the arrangement between her husband, and the
defendants.
The facts in this case are somewhat like those in Eoberts'
Appeal, 85 Pa. St. 84. The syllabus there is : T. transferred
stock to F., a niece of his wife, on the books of a corporation,
but ret<T.ined the certificates in his possession, and after his
death they were found in an envelope with his own name and
that of F. indorsed thereon. F. had no knowledge of the trans-
fer. She lived in the family of T. and was in all respects
treated and regarded as his daughter. Held (affirming the
court below), that the transfer on the books of the corporation
vested in F. the legal title to the stock, and she was entitled
to the same. In the opinion of Judge Thayer, adopted by this
court, it was said: "But here the gift is com})Iete by his delivery
of tl)e thing itself, for transferring the sliares to her upon the
lx)oks of the company is putting lier in coni])lete possession of
the thing assigned and clothing her with tlie complete legal
title. It stands in the place of a delivery. Such an act per-
forms precisely the office which an actual dolivcry would per-
form if it were a chattel. It is as complete a delivery as the
nature of the thing will admit of. There can be no clearer
evidence of a design to part with the right of property in favor
of another than an absolute transfer of the legal title to her
for her own use."
In the present instance the transfer of the account from the
name of the' husband to that of the wife upon the books of the
brokers would seem to be as complete a conveyance of the right
of action as the nature of the ease will admit.
Am. St. Rep., Yol. 101—59
930 American State Repokts, Vol. 101. [Penn.
The right of the plaintiff to recover here is sustained hy the
principle recognized as an exception to the ordinary rule in
such cases as Kountz v. Holthouse, 85 Pa. St. 235, which arose
^'* out of the sale of a partnership interest. Mr. Justice Mer-
cur there said (page 237) : "The general rule is that an action
on a contract, whether express or implied, must be 'brought in
the name of the party in whom the legal interest in such
contract was vested: 1 Chitty on Pleading, 2. Yet many cases
are to be found in which the right of a third person to sue has
been sustained on a promise made to another. Hence, if one
pay money to another for the use of a third person, or having
money belonging to another, agree with that other to pay it to
a third, an action lies by the person beneficially interested.
This right of action is not restricted to cases of money only,
but extends to an agreement to deliver over any valuable
thing, so that such third person is the only party in interest."
And'in Adams v. Kuehn, 119 Pa. St. 76 (85), 13 Atl. 186, we
find that ''Whore one person enters into a contract with another
to pay money to a third, or to deliver some valuable thing, and
such third party is the only party interested in the payment or
delivery, he can release the promisor from performance or com-
pel performance by suit." And further on in the same case it
is said that where "the third person, although not a party to the
contract, may be fairly said to be a party to the consideration
on which it rests. In good conscience the title to the money
or thing which is the consideration of the promise passes to
the beneficiary and the promisor is turned in elfect into a
trustee."
The real questions of fact arising in this case wore, with
careful discrimination, ])ointcd out and submitted to tlie jury
by the learned trial judge, and the evidence was, we think,
sufficient to support the verdict.
The assignments of error are overruled, and the judgment
is aflirmed.
^Miteliell, C. J., and Thompson, J., dissent.
Thr FssmtidlH of a Valid Gift are discussed in Waite v. Grnhhe, 43
Or. 406, 73 Par-. 200, 99 Am. St. Eop. 764, and casos oitod in tho cross-
roforencp nnto tlioreto; Opitz v. Karel, US Wis. .127, 99 Am. St. Rep.
1004, 95 N. W. 94S. Acceptance of a gift need not be made im-
niediatelv, it is snfTicient if accepted before revocation: Love v.
IVancis, "63 Mich. ISl, 6 Am. St. Rep. 290, 29 N. W. S43. The gift
of a ])ank deposit may be affected, though there is no change of credit
on tlic Looks of the Ijank: Murphy v. BordwcH, S3 Minn. 54, 85 Am.
Jan. 1904.] Lengert v. Chaninel. 931
St. Eep. 454, 85 N. W. 915, 52 L. E. A. 849. As to what constitutes
a gift of stock, see First Nat. Bank v. Ilolland, 99 Va. 495, 86 Am.
St. Eep. 898, 39 S. E. 126', 55 L. E. A. 155; Victor G. Bloede Co. v.
Bloede, 84 Md. 129, 57 Am. St. Eep. 373, 34 Atl. 1127, 33 L. E. A.
107; Bond v. Bean, 72 N. H. 444, ante, p. 686, 57 Atl. 340.
LEXGERT V. CHANINEL.
[208 Pa. St. 229, 57 Atl. 561.]
EXECUTION SAIjE — Setting Aside After Reversal of Judg-
ment.— A rule to set aside a sheriff's sale taken after the payment
of the purchase money, the delivery and recording of the deed, and
the obtaining of possession bv the purchaser, is too late; and it does
not affect the question that the plaintiff in the execution is the pur-
chaser, and the judgment has been reversed, (p. 932.)
EXECUTION SALE — E^versal of Judgment— Restitution.— An
execution creditor who purchases at the sale is within the protection
of a statute providing that where land has been sold under a writ
issued upon a judgment afterward reversed, the land shall not be re-
stored, but there shall be restitution only of the money or price for
which the property was sold. (p. 933.)
"William S. Divine, for the appellant.
W. H. G. Gould and Francis E. Buclicr, for the appellee.
230 pELL^ J, The plaintiff in an action on a niorttrafre
obtained judgment ^^^ for want of a sufficient affidavit of de-
fense. The defendants appealed, but failed to make the appeal
a supersedeas by entering security, as required by the act of ]\ray
19, 1897 (Pub."' Laws, 67). The plaintiff, notwithstanding the
appeal, proceeded to collect his Judgment and caused the land
to be sold by the sheriff, and through his attorney became the
purchaser thereof. Twenty days after the acknowlodgrmfnt and
delivery of the slicriff's deed, the judgment was reversed by this
court on tlie ground that the averments of tlie affidavit of de-
fense were suiTicient to entitle the defendants to a trial. A
month after the reversal of the judgment the defendants
obtained two rules: one to show cause why the sheriff's
sale should not be set aside, the other to show cause wliy a writ
of restitution should not issue. After hearing by the court
the first rule was discharged, and the second was made al>solutc,
and it was directed that "a writ of restitution of the money or
price for which the mortgmged lands were sold at the sheriff's
sale issue returnable sec. leg." This appeal is from these orders.
932 American State Eeports, Vol. 101. [Penu.
The defendant's contention as to the latter is that the land
should have hcen restored, and if not this, then the full value
thereof and not merely the price at which it was sold.
The rule to set aside the sheriff's sale was taken after the
I)ayment of the purchase money, the acknowledgment, delivery
and recording of the sheriff's deed, and possession obtained
hy the purcliaser. It was too late, because the court was with-
out power to act by rule. If there was doubt as to this sub-
ject before it was set at rest by the opinion in Evans v. Maury,
112 Ta. St. 300, 3 Atl. 850, in which it was said: "We have no
doubt as to the proper rule. The delivery of tlie deed by tlie
sheriff after it had been properly acknowledged, the sale con-
firmed and the purchase money paid vests the title in the pur-
chaser. It is a good title until it is proved that he obtained it by
fraud, involving in most cases a conflict of testimony
It is a very great stretch of power, far greater than any chancel-
lor ever exercised, to dispose of such grave questions in a sum-
mary manner. We cannot concede the power of any single
judge of wresti]ig a man's title from him on a rule to show
cause." This ruling was followed in the recent case of Media
Title etc. Co. v. Kelly, 185 Pa. St. 131, 64 Am. St. Pop. 021,
39 Atl. 832. It does not affect the question that the plaintiff
in the execution was the purchaser ^^^ at the sheriff's sale
and that tlic judgment on which the sale was founded has been
reversed. Ilis title was perfected by the acknowledgment and
dcdivery of the deed, and it could not l>e taken from him by this
])roccss. Tlie question was the power of the court, no fraud
having been practised on it, to set aside the sale in a rule to
sjiow cause, and it has been settled that the court has not this
power.
The ninth section of the act of 1705 (1 Sm. L. 57) provides
tliat where the land has l)een sold under a writ issued upon a
judgment which was afterward reversed, the land shall not
be restored, but there sliall be "restitution in such cases only
of ilif! money or price for which such lands were or shall be
sold."' It is conceded that if the land had been purcliased by
a strnnifi^r his title would be unquestionable, and that there
could be no restitution. But it is argued that since the pur-
chaser was tlie execution creditor, he is not a bona fide pur-
cliaser and witliin the protection of the act. We see no reason
whatever for tlie imputation of mala fidc^s to the appellee. V>y
a recrular course of proceeding in a court of compet<Mit jui'is-
diction he obtained a juilginent perfectly valid on its face, and
Jan. 1904.] Lenqert v. Ciianinel. 933
followed the course pointed out by law for its collection. He
did only what the law gave him the right to do, and the ap-
pellants' trouble has arisen from their own failure to follow
the course prescribed by law to suspend proceeding until final
judgment. The act of 1705 makes no exception against the
right of an execution creditor, and we can make none. Dur-
ing the long period the act has been in force there have been
but few decisions on the question but these all sustain the
view that no distinction can be drawn between a pureliase by
the plaintiff and a purchase by a stranger to the action. In
Arnold v. Gorr, 1 Eawle, 223, it was said : "I see no difference,
or reason for a difference, between the case of the plaintiff in
the execution becoming a purchaser, and that of a stranger.
The act of assembly is general in its provisions in protecting
purchasers, and I see no reason in restraining it to strangers
only." The dicta to the contrary in some earlier cases were
disproved in this opinion. This statement of the law was
distinctly approved in Hale v. Henrie, 2 Watts, 143, 27 Am.
Dec. 289 ; Warder v. Tainter, 4 Watts, 270 ; Tarbox v. Hays, 6
AYatt-s, 398, 31 Am. Dec. 478.
It is sufficient answer to the contention that the restitution
2.'J3 ordered should have been the value of tlic land sold, that
tlie act prescribes what shall be restored as tbe money or price
for which the lands were sold, and the court had no power to
exceed this limit.
The orders are affirmed.
TJie Rrvr7'sal of Jitdf/uioifs is the subject of ,i monn<Traphic noto to
Cowdery v. London etc. Brink, 96 Am. St. Eop. 1"24-14(). Accordinir
to Blake v. Wolfe, 111 Ky. 840, 98 Am. St. Rep. 4.-?4, 04 S. W. 910,
the title acquired by the purchaser at a judicial sale, although he is
the plaintiff in the action, is not devested by a subsequent r«'versal
of the judgment. But see Di Nola v. Allison, 113 Cal. 106, 76 I'ac.
976 ante, p. 84, and authorities cited in the cross-reference note
thereto. As to the right to restitution upon the reversal of a judg-
ment, see Florence Cotton etc. Co. v. Louisville Banking Co., 1I!H
Ala. 5^'^, 100 Am. St. Eep. .50. ,36 South, 456; Di Nola v. .Mlison, 143
Cal. 100, ante, p. 84, 76 Pae. 976.
934 American State Eeports, Vol. 101. [Penn.
BLAIR V. SUPREME COUNCIL AMERICAN LEGION
OF HONOR.
[208 Pa. St. 262, 57 Atl. 564.]
BENEFIT SOCflETY — Relation to Members.— A benefit society
sustains a relation to its members other than that of a mere life in-
surance company; the fund raised is practically a trust fund made up
of their contributions, (p. 936.)
BENEFIT SOCIETY — Payment of Less than Face of Certifi-
cate.— If a widow presents her husband 's death certificate of five
thousand dollars to a benefit society for payment, without knowledge
that after the issuance of the certificate it had been enacted by by-
laws that two thousand dollars should be the highest amount paid
upon any death, and surrenders the certificate and accepts nineteen
hundred dollars on the representation that this is all she is entitled
to, she may maintain a bill in equity against the society to compel
the return of the certificate, to make discovery of the condition of
the emergency fund, and to pay the face of the certificate, less the
amount already received, (p. 937.)
EQUITY. — Jurisdiction in Equity Depends not so much on the
want of a common-law remedy as upon its inade(iiiacy, and its ex-
ercise often rests in the discretion of the court; in other words, the
court may take upon itself to say whether the common-law remedy
is, under all the circumstances and in view of the conduct of the
parties, sufficient for the purpose of complete justice, (p. 937.)
E(l<:rar Dudley Faries and Frederick J. Gcigor^ for the ap-
pellant.
J. F. P). Atkin and Murdoch Kondrick, for the appellee.
2«^ DEAN, J. On February 25, 1.SS9, the defendant, a
beneficial organization, issued its certificate to Henry C. Blair,
■vvheruby it agrecMl to pay to Mary L. Blair, his wife, upon the
death of her husliand, $r),000 on condition of tlic husband's com-
pliance with tbe by-laws of the company. Tbe husl)and did
comply with all tlie ])y-laws, and on the face of the cortificatc
liis widow was entitled to jiayment of tbe $o,00(); but it ap-
jtoared that on August 1, V-H)0, about eleven years and five
nioutbs after tlse issue of tbe certificate and about six months
Ix-'fore tlio dratli of tbe husliand, tbe supreme council of the
order adopted tliis l)y-hiw: "'^I'wo thousand dollars shall be tbe
highest amount ]iaid bv tbe order on tbe death of a nicnd>er
ujKJii any benciit certilicato beretofore or hereafter issued. This
sum shall be j^aid upon tlie death of evorv member holding a
benefit certiiicat*; ^**'* of two thousand dollars or over ])ro-
vided that tbe face value of the benefit certificate shall be paid
Jan. 1904.] Blair v. Supreme Council etc. 935
80 long as the emergency fund of the order has not been ex-
hausted.'*
On May 4th the widow filed with the order proof of the
death of her husband, called upon the proper officer and re-
quested payment of the $5,000. She had no knowledge of a
by-law which enacted that the face value of the certificate
should be paid only so long as the emergency fund was not
exhausted. The officer or cashier of the defendant when she
made the request for payment then informed her that the
order had adopted a resolution that no member should be paid
more than $2,000, and that from this sum there was to be de-
ducted five per cent, or $100, leaving to be paid to her only
$1,900, and that she would have to take that or nothing. Ec-
lying on the officer's representation that this was all she was
entitled to, she accepted the $1,900 and surrendered lier cer-
tificate for cancellation. About one year after the surrender
of the certificate she first learned of the adoption of the by-law;
she then demanded a return of the certificate, the payment of
the face of it less the sum of $1,900 already paid. This was
refused. Thereupon, on these facts, she filed this bill praying
that: 1. Defendant be ordered to return to her the bcnolit
certificate; 2. That the contract be reinstated for $5,000 with
a credit for the payment already made to licr; 3. That de-
fendant make discovery of the condition of the cnu'raiMK-y fund ;
4. That defendant be directed to pay to licr the full sum of
$5,000, with interest, loss the credit of $1,;)U0. To lliis lull
defendant demurred, for the reasons: 1. That plainlitl' had an
adequate remedy at law; 2. That no fraud or conlidcMitial rela-
tion was shown. The court below sustained the deinurrer and
dismissed plaintiff's bill; from that decree she appeals.
The learned judge of the court below was of o])ini(in that
plaintiiT, on the face of her bill, disclosed iU:\i she had a full,
complete and ade(]uate remedy at law; we do not ihiuk so.
That she had a remedy at law may be concedivl. wiiboul bailing
her in equity; that remedy may have lieen iiiade!|nale. The de-
fendant sustained a relation toward its memhers (Mher than that
of a mere life insurance company. See the very full ojiiiiion
of Justice Clark, Commonwealth v. Ivpiitalile IxMiefieial Assn..
y«5 137 Pjj_ g|._ _||2, IS Atl. in?. lie says: '"The great under-
lying purpose of tlie organization is not to indemnify or secure
against loss; its dcsip-n is to accumubite a fund from the con-
tributions of its members for beneficial or protective purposes
93Q American State Eeports^ Vol. 101. [Penn.
to be used in their own aid or relief in the misfortunes of sick-
ness, injury or death." He then goes on to show that the fund
thus raised is practically a trust fund, made up of the con-
tributions of the members; it is in no sense a corporation for
profit although the particular amount to which any one member
is entitled rests on an express contract. This charter declares
that its purpose is to unite its members fraternally, to give
them moral and material aid, to establish a fund for the relief
of the sick and distressed, to establish a benefit fund out of
which on the death of a member a sum not exceeding $5,000
shall be paid to the family, orphans, or those dependent on the
deceased member. \Mien this widow called upon the officer
and requested payment of her certificate of $5,000, she was
met by the answer that she was only entitled to $1,900. When
she sought an explanation, she was told to "take that or
notliing."
It seems to us the wddow of a deceased member of a society
with such high sounding purposes had a right to expect a
more satisfactory explanation why her certificate was reduced
from $5,000 to less than $2,000. She could not get even that
unless she surrendered her certificate for cancellation. Under
the stress of circumstances she surrendered it; afterward she
discovered, as she believed, that she was entitled to the face of
it witliout deduction. To what extent tliis case is controlled, if
at all, by Becker v. Berlin Ben. Soc, 14-1 Pa. St. 2;].2, 27 Am.
St. Kep. G24, 22 Atl. G99, and ^Marshall v. Pilots Assn., 20G Pa.
St. 182, 55 Atl. 91(5, we cannot, at tliis stage in the evidence,
undertake to determine. The order, however, now sets up a bar
to her claim, which in substance is a plea of "accord and satis-
faction," in that she surrendered her certificate for cancella-
tion. We have no hesitation in holding that her relation with
\\\(i order entitled her to the fullest ex])lanation of the reason
for its refusal to pay the certificate. She was not dealing at
anns'-lcngth with a corporation, but seeking payment for the
amount of a meritorious claim. Of the extent of her claim and
the Justice of lier demand the fraternal order had in its exclusive
possession full and exact knowledge, but it communicated no
item of that knowledge to -*'** her; her certificate wa.s, in effect,
extorted from her by the curt reply, "Take that or nothing."
She put in the order's possession the sole evidence of her claim.
Her suit at law must he based upon that certificate, yet the
order persists in retaining possession of it.
Jan. 1904.] Blair v. Supreme Council etc. 937
True, she might declare upon it as a lost instrument, or as
one which had been unlawfully obtained from her, and give
secondary evidence of its contents, but there is a much shorter
and more certain way of obtaining it and the money really due
her, and that is, by the method she has pursued, calling upon
the order at the foot of a hill in equity to produce it, and sub-
mit to such decree as equity may impose. The demurrer filed
by defendant discloses that it avers the certificate was de-
livered up to be canceled; if canceled, then at law she would
have to show by the books of defendant that the cancellation
was unlawful; the books and documents bearing on the ques-
tion are all in the possession of defendant; this to her would
be a most vexatious and inconvenient burden and one that
ought not to be imposed upon her.
Consider the pleadings of record : She claims $5,000, the face
of her certificate; defendant answers by averring the resolution
of August 1, 1900, of the supreme council, that $2,000 shall
be the highest amount paid on the death of a member; she re-
plies that neither slie nor her hushand is bound 'by it, because,
as to this certificate, tlie resolution was adopted eleven yearrf
and five months after its delivery without the knowledge or
consent of her husband; that at the date of its delivery her
liusband paid an assessment as if upon a certificate of $5,000
and continued said paraients until his dcatli ; that the resolu-
tion which it is claimed reduces the amount, even if it had been
authorized, involves a full examination of the books and records
of the order to determine the exact condition of what is called
"the emergency fund." We think, taking into view the rela-
tions of the parties, even though the order be not tcclmically a
trustee for the widow, as well as the nature of the inquiry tliat
may have to be made into records, tlie remedy at law would
not have been an adequate one, and that a bill in equity is a
more appropriate remedy and best adapted to the inquirv,
Says Bicrbower*s Appeal, 107 Pa. St. 14: "Granted that an
action of assumpsit would lie, it does not therefore follow
^^"^ that the chancery side of the court bas no jurisdiction.
Jurisdiction in equity depends not so much on tlie want of a
common-law remedy as upon its inadequacy, and its exercise
often rests in the discretion of the court; in otlier words tlie
court may take' upon itself to say whether the common-law
remedy is, under all the circumstances and in view of the con-
duct of the parties, sutficient for the purpose of complete jus-
tice."
938 American State Reports^ Vol. 101. [Penn,
Therefore, the decree of the court below sustaining the de-
murrer and dismissing the bill is reversed; it is ordered that
the bill be reinstated and defendant is ordered to answer over,
and it is further ordered that the parties proceed to hearing on
the issue.
A Benefit Sodefy cannot, -witbont the consent of a member, arbi-
trarily reduce the amount of insurance stipulated for in the contract
of membership: Euss v. Supreme Council etc., 110 La. 5S8, 98 Am.
St. Eep. 469, 34 South. 697. See, too, WurHor v. Trustees Grand
Grove etc., 116 Wis. 19, 96 Am. St. Eep. 940, 92 N. W. 433; mono-
graphic note to Strauss v. Mutual Ecserve etc. Assn., 83 Am. St. Eep.
710.
The Compromise or Release of a claim made in ignorance of one's
rights is discussed in the monographic note to Alabama etc. Ey. Co.
V. Jones, 55 Am. St. Eep. 507-512. This question in its application
to claims for insurance is considered in Manhattan Life Ins. Co. v.
Burke, 69 Ohio St. 294, 100 Am. St. Eep. 666, 70 N. E. 74; Titus v.
Eochoster German Tns. Co., 97 Ky. 567, 53 Am. St. Eep. 426, 31 S. W.
127, 28 L. E. A. 478; McLean v.' Equitable etc. Assur. Soc, 100 Ind.
127, 50 Am. Eep. 779; Eorrv v. American Cent. Ins. Co., 132 N. Y.
49, 28 Am. St. Eep. 548, 30"2S^. E. 254.
CUXDEY V. TTAT.L.
[208 Pa. St. 333, 57 Atl. 761.]
PARTNERSHIP— Eeal Estate— Parol Evidence of Title.— Tt is
not competent, in order to affect the title or possession of land, to
show by pnrol tlint a deed to two persons as tenants in common
was purcliased and paid for by them as partners and is partnership
property; purcliasers and creditors alike uiay rely on tiie title to
real est.-ite as shown by tlie record, (p. 941.)
COTENANCY — Title to Property as Shown by Records. — When
persons t;ike title to laud as tennnts in common and ]>lace it upon
record, the act, so far as it may afTect purcliasers and creditors with-
out notice, must be considered as a declaration by the owners of
the character in which tlnn' intend to hold the property, (p. 911.)
PARTNERSHIP— Real Estate.— Creditors of a Partnership
whose memljers hold land as t<Miants in commion cannot enforce pay-
ment of their claims out of the hin.l as acrainst individual creditors of
the partners; the latter are entitled to have their claims first satis-
fied out of tho proccc, Is (>r the j)roperty. (v. !)tl.)
PARTNERSHIP — Real Estate. — As Between Partners them-
selves real estate purchased with partnership funds and for part-
nership purposes is partnership property and may be shown to be
Kuch, notwithstanding the deed waa made to the individuals com-
posing the firm as t(>nants in ciimmon. (p. 91."'.)
PARTNERSHIP Real Estate. — A Judgment Creditor may, in
order to satisfy a balance still due after selling his debtor's in-
Jan. 1904.] Cundey v. Hall. 939
terest in a partnership, take the debtor's share of the proceeds of
real estate held by him and his partner as tenants in common, as
against the purchaser of tue partnership interest, (p. 943.)
0. B, Dickinson, for the appellant.
A. L. Smith and George T. Butler, for the appellees.
33« MESTREZAT, J. At the time of his death in Novem-
ber, 1888, and for several years prior thereto, William Hall and
his two sons, Thomas C. Hall and John H. Hall, were engaged,
under the firm name of William Hall & Company, in the shoddy
manufacturing business in Upper Darby township, Delaware
county. The firm carried on its business at a plant which, in-
cluding the land, buildings and machinery, was owned by Will-
iam Hall, ^^''' and for which he received a montlily rental from
ihe partnership. He died intestate, leaving to survive him
Charlotte Hall, his widow, two sons above mentioned and a
daughter, Sarah Ann Cundey, intermarried with Colin R.
Cundey. On April 16, 1889, the widow and daughter with her
husband, conveyed by deed their interests in the premises t<i
the two sons as tenants in common who then, as owners in fee
of the premises, executed three mortgages thereon, one in favor
of the daughter, Sarah Ann Cundey, and two in favor of the
widow, Charlotte Hall. The deed and mortgages covered the
land, l)uildings and machinery. Tlie firm having been dis-
solved by the death of William Hall, tlie two sons wound up its
business. After they had purchased the interest of tbeir motlier
and sister in the plant, they "opened the books of the new
firm of William Hall & Company, composed of the two l)rothers,
Thomas C. and John H. Hall, and they took the real estate
into tlieir business, subject to those mortgages, and carried it
on their books as firm property.'^ The firm used the propertv
in the sbnddv manufacturing business without paying rent,
but paid tlie insurance, taxes and wliatover interest was paid
on the mortgages, as well as part of tbe principal of tlie Cundey
mortgage. The real estate was never conveyed to tbe firm,
nor was tlie partnersbip ever made a matter of j)ul)lic record.
After Jolm TT. Hall and his brother bad bt'como owners in fee
of tlie manufacturing plant, several judgments w(>re eiiti'icil
against him individually, on one of which his intenst in tbe
firm of William Hall & Company, was sold January 4. lOdO,
and purchased by James A, ]\rcCullougb, the appellant. Sarah
Ann Cundev died in ISOo. and her administrator issued a seire
facias on the mortgage held by her against Thomas C. Hall
9-iO American State Eeports^ A^ol. 101. [Perm.
and John 11. Hall and, having obtained a judgment thereon,
sold tlie real estate on a levari facias, on June 7, 1902, for
thirty thousand four hundred dollars.
The controversy here arises over the distribution of this fund.
The sheriff reported a schedule of distribution as provided by
the act of June 4, 1901, Public Laws, 357, to which exceptions
were filed. An auditor was then appointed hy the court to pass
on the exceptions and to make distribution of the fund. The
claimants before him were "the holders of the three mortgages,
the individual judgment creditors of John H. Hall, the
^^^ purchaser of the interest of John H. Hall in the firm of
William Hall & Company, and Thomas C. Hall, the other mem-
ber of the firm against whom no other liens had been entered."
The auditor awarded payment in full of the three mortgages
and directed the halance of the fund to 'be divided equally be-
tween Thomas C. Hall and EdAvard W. Porrott, who held the
first lien against John H. Hall individually.
This appeal was taken by James A. McCullough, who pur-
chased the interest of John H. Hall in tlie firm of William
Hall & Company sold by the sherifi' on the judgment of Ed-
ward W. Perrott. The appellant claims that the manufac-
turing plant was the propert}'' of the firm, "was absolutely
necessary to the partnership, and was openly and notoriously
occupied by the firm and used for partnership purposes as firm
property." It is, therefore, contended that as the firm had
no creditors tlie proceeds of the sale of the plant, after the
payment of the mortgages, should have been awarded to Will-
iam Hall & Company or to Thomas C. Hall as liquidating
])artner of the firm, and not to the members of tlie firm as in-
dividuals or to their judgment creditors. It was furtlicr con-
tended tliat as against James A. ]\rcCullough, the a))pellant,
Edward W. Perrott was not entitled to claim any ])art of the
proceeds of tlio sale of this property on his judgment against
Jolm H. Hall, for tlie reason that Perrott had sold Hall's in-
terest in the firm on his judgment and McCuUougli had pur-
chased it.
The manufacturing plant, including the land. mill, machinery
and houses, was acf|uired, as we have scon, l)y Tliomas C. Hall
and John H. Hall partly bv descent from their fatlior and
jiartly by deed as tenants in common from tlieir motlior and
sister. This title was never changed of record, but the prop-
erty was held by the owners as tenants in common until the
sale was made on a scire facias issued on one of the mortii^aires.
Jan. 1904.] Cundey v. Hall. 941
There was nothing of record to show that the plant or any
part of it was held or used as partnership property. All that
the record disclosed as to the title to the property was that
Thomas C. Hall and John H. Hall owned it as tenants in com-
mon. Such, briefly, are the conceded facts as to the record
ownership of this property.
For seventy years, and in an unbroken line of decisions, we
^^^ have adhered to the rule announced in Hale v. Henrie, 2
Watts, 143, 27 Am. Dec. 289, that in order to affect the title
or possession of land it is not competent to show by parol that
a deed to two persons as tenants in common was purcliased and
paid for by them as partners and was partnership property.
Purchasers and creditors alike may rely upon the title to real
estate as shovm by the record, and having done so the law will
not permit their rights acquired on the faith of the title as
thus disclosed to 'be defeated by parol evidence. When parties
take title to land as tenants in common and place it upon record,
the act, so far as it may affect purchasers and creditors without
notice, must be considered as a declaration by the owners of
the character in which they intend to hold the property. Cred-
itors of a partnership composed of the individuals who thus
hold the title cannot, therefore, enforce payment of their claims
out of the property as against the individual creditors of the
partners. Tlie latter are entitled to have their claims first sat-
isfied out of the proceeds of the property. Such is the well-
settled law of the commonwealth.
In Ridgway, Budd & Co.'s Appeal, 15 Ta. St. 177. 53 Am.
Dec. 5SG, the court, by Rogers, J., says: "To alTcct tlie title
or possession of land, it is not competent to slmw by parol that
real estate conveyed to two persons as tenants in common was
purchased and paid for by them as partners, and was partuer-
sliip property. This is firmly settled in the ca^os cited, and in
other cases which it is unnecessar}^ to quote. Here there can
be no doubt the property was held as a t(Minncy in coininon;
and as nothing was put on record, manifesting the intention
of the partners to regard it otherwise, it must be treated as
separate estate, and of course liable as such to their creditors.
In all such cases, parol testimony is totally disregarded." "It
is certainlv determined in a long train of decisions," says Agnow.
J., in EbWt's Appeal, 70 Pa. St. 79, "that as to purchasers
of the title and creditors having liens on it. a deed to ]iersons
who are in fact partners, but who take the title to tlicinselvi^s
as tenants in common, must stand as the foundation of their
942 American State Eeports^ Vol. 101. [Penn.
rights, and govern in the distribution of the proceeds of a sale
of the title. Partnership creditors cannot by parol evidence
change the effect of the deed, and convert lands so individually
licld into assets of the partnership, and thereby dislodge and
postpone ^**^ the otherwise preferred liens of individual cred-
itors." In Gunnison v. Erie Dime Savings etc. Co., 157 Pa.
St. 303, 27 Atl. 747, it is said : "Land granted to the member
of a partnership, paid for with partnership money, the deed
placed on record, yet nothing on the face of it to show that
it is other than a conveyance to an individual, cannot be turned
into mere personalty for partnership creditors by parol testi-
mony or secret agreement, to the destruction of the lien of a
judgment entered against the individual grantee." In the re-
cent case of Stover v. Stover, 180 Pa. St. 425, 57 Am. St. Eep.
654, 36 Atl. 921, Williams, J., delivering the opinion, says:
"It is settled that when two or more persons who are partners
take title to land as tenants in common, the presumption aris-
ing from the deed is that they hold the title as tenants in
common in equal shares. As between themselves, tlie deed is
not conclusive, but they hold in accordance with the facts.
As to purchasers and creditors, they hold in accordance with
their recorded title. Taking and recording a deed as tenants
in common gives cliaracter to tlie title of the several holders
upon which the public may safely rely. They are bound to
take notice of what appears upon tlie records, and they have a
riglit to act upon the faith of what tboy find there."
The record title to the real estate in question being in
Thomas C. ITall and John II. Hall as tenants in common, it
follows that the auditor and court below were right in award-
ing the proceeds of the sale of tlie property, after payment of
the mortgages, to Thomas C. Hall individually and to the lien
creditors of John H. Hall according to their priority. The
appellant purchased John H. Hall's interest in the firm of
William Hall & Company. As against the individual creditors
of John H. Hall, therefore, he cannot have any claim on this
fund. It must he distributed in conformity with the character
impressed Tipon it by the title to the property which produced
it.
The appellant relies upon Erwin's Appeal, 39 Pa. St. 535,
SO Am. Dec. 542, and Abbott's Appeal, 50 Pa. St. 234, to sus-
tain his position that he has the right to show that the manu-
facturing plant was partnership property and that the pro-
ceeds of tlie sale must be distributed as such. These cases,
Jan. 1904.] Cundey v. Hall. 943
however, do not sustain the appellant's contention. In Erwin's
Appeal, 39 Pa. St. 535, 80 Am. Dec. 542, Meyers, one of the
partners of the firm of Imhoff & Meyers, paid the purchase
^^^ money with partnership funds and took the title in his
own name. It was used as partnership property, and having
been sold by the sheriff, the proceeds vrere awarded to a judg-
ment against the firm in preference to a judgment against
Imhoff, the other partner. But Judge Strong in his opinion
recognizes tlie doctrine of the cases we have cited above, and
distinguishes this case as follows: "Had the title been taken
by both Imhoff and Meyers, without any assertion on its face
that it was treated by them as partnership property, under the
ruling in Hale v. Henrie, 3 Watts, 143, 27 Am. Dec. 289, and
several subsequent cases, they would have been but tenants in
common." The contest in Abbott's Appeal, 50 Pa. St. 234,
was between partners themselves and did not relate to pur-
chasers or creditors, as is shown by Agnow, J., in Ebbert's
Appeal, 70 Pa. St. 79, and as is recognized by Clark, J., in
Shafer's Appeal, 106 Pa. St. 49. Hence that case can have
no application to the facts here. It is unquestionably true
that as between partners themselves real estate purcb.ascd with
partnership funds, and for partnership purposes is partner-
ship property, and it may be shown to be such, notwithstand-
ing the deed was made to the individuals composing the firm
as tenants in common. But that rule cannot be invoked here
to defeat the claims made on this fund by the lien creditors
of John H. Hall.
We do not agree with the appellant's contention that tlie
sale of John H. Hall's interest in the partnership on tlie judg-
ment of E. W. Perrott estops the latter from claiming pay-
ment of the judgment or the balance due thereon out of Hall's
interest in the proceeds of tlie sale of tlie real estate. Hall's
interest in the real estate which, as against that judgment, was
not firm assets and did not pass by the sale of his interest in
the partnership. Hence, the appellant as purchaser of the part-
nership interest did not acquire any interest in the real estate
or the proceeds resulting from the sale of it. Perrott is not
now claiming Hall's interest in the partnership sold on liis
judgment and purchased by the appellant, but is seeking to en-
force his judgment against his debtor's interest in tlie proceeds
of the real estate on which it is a first lien and which is not an
asset of the firm of William Hall & Company.
944 American State Eeports, Vol. 101. [Penn.
The assignments of error are overruled and the decree is
affirmed.
Partnership Real Estate is discussed in the monographic note to
Golthwaite v. Janney, 48 Am. St. Rep. 62-77; Freeman on Cotenancy,
and Partition sees. 111-120; Adams v. Church, 42 Or. 270, 70 Pac. 1037,
59 L. E. A. 782, 95 Am. St. Rep. 740, and cases cited in the cross-
reference note thereto.
T?t€ Law Protects Purchasers of Real Property as the title appears
of record, unless there is notice of something to the contrary: Booker
V. Booker. 208 111. 529, 70 N. E. 709, 100 Am. St. Rep. 250, "and cases
cited in fhe cross-reference note thereto. For the application of this
rule to property appearing of record as owned hv tenants in common:
See Mullins v. Butte Hardware Co., 25 Mont. 525, 87 Am. St. Rep. 430,
60 Pac. 1004.
CASES
IN THE
SUPREME COURT
or
UTAH
CIIRISTIEXSOX V. RIO GK'AXDE WESTERX RAILWAY
COM PAX Y.
[27 Utah, 132, 74 Pae. 876.]
MASTER AND SERVANT— Assumption of Risks.— Tf one of
ordinary intelligence engaging in an employment obviously danger-
ous, knows the manner in which it is to be carried on and consents
thereto, being familiar witli the conditions and surroundings, and
aware that his own work and that of his fellow-workmen will con-
stantly change its character, rendering it alternately safe and danger-
ous, he assumes the risks incident to the employment, (p. 949.)
MASTER AND SERVANT— Assumption of Risks.— Tf an ex-
perienced employe of ordinary intelligence at work on a gravel bank
voluntarily selects a place to stand that is obviously dangerous, be-
ing familiar with the bank, its conditions and surroundings, the char-
acter of the materials of which it is composed, knowing that it was
viiidermined at the p)articular place where he is woiking, and aware
that the bank might cave and fall at any moment, he assumes the
risk of injury therefrom and cannot recover tlierefor, especially when
he ha<l worked at the bank in the same capacity on numerous previous
occasions, and was as familiar with it, its condition, and the manner
in which operations were carried on as his employer, (p. 9n(l.)
MASTER AND SERVANT— Assumption of Risks.— .\n em-
ployer may carry on his business in any way lu> may choose, althouirli
another method would be less dangeroiis, and if his (Mii|doy6 knows
the hazards incident to the business in the manuer in which it is car-
ried on, and continues in the employment, he assunu^s the rislcs of the
more dangerous method, (p. 9;")0.)
MASTER AND SERVANT— Assumption of Risks.— An em
ploye wdio engages in any service, and consents to the manner in
which it is performed, aware of the conditions and the dangers ini'i-
dent to the employment, and voluntarily iindertaking to ])erforni t.,!'
service at the place of injury, assumes the ordinary risks thereof,
(p. 951.) ,
Am. St. Rep., Vol. 101—60 (915;)
94.6 American State Eepoets^ Vol. 101. [Utah_,
MASTER AND SERVANT — Assumption of Risks— Safe Place
to Work. — If a servant assents to occupy the place assigned him in
•which to work, and incur all the dangers incident thereto, having
sufficient intelligence and experience to enable him to comprehend
suc'h dangers, his assent dispenses with the performance of the mas-
ter's duty to furnish the servant with a safe place in which to work,
(pp. Qolj'OoS.)
Sutherland, Van Cott & Allison and S. E. Tlmrman, for the
appellant
M. Sommer and D. S. Truman, for the respondent.
133 BARTCH, J. The plaintiff brought this action to recover
damages for personal injuries, which he alleges he received
tlirough the negligence of the defendant. From the evidence
it appears, substantially, that the plaintiff is forty-three yeai-s
of age, and for many years prior to and at the time of the acci-
dent which caused his injuries was in the employ of the de-
fendant as a soction-hand. When he received his injuries,
which was on Janiiary 29, 1901, he was working at a gravel
])ank at Sant<aquin, on the defendant's line of railway, shoveling
gravel into a car provided bv the company for that purpose.
ITe had worked there in that capacity at different times since
the year 1892. The bank was about twelve or fifteen feet high,
and contained difforcnt layers of dirt, cement and gravel. At
llie place where he was working, where the accident happened.
tl;e thickness of tlie gravel, from the bottom of the bank to the
cement, was aliout six feet; the cement was about two feet, and
the dirt or ground on top of the cement about four feet tliick,
making the bank about twelve feet high at that point. Tlie
method emjdoved to get the gravel down was to undermine
the ])ank witli pick and shovel, and tlien break it down from
IliC top wlien it did not fall of its own weight. At the time
of tlic accident tlie ])aiik had been undermined about two feet,
and was top-heavy, and broke away and fell of its own accord,
reusing the injuries of which complaint is made. The plaintiff
was familiar wilh the metliod of loosening the gravel, and had
on ])roviniis occasions, with other fellow-workmen, undermined
the hank for the same purpose. He was familiar with the bank ;
knew the material *34 ^^f which it was composed; was aware,
vbih' working there before and when the accident occurred, that
the bank was undermined, that it was dangerous and might fall
al any minute, and that either himself or his fellow-workmen,
OT bnth, had undermined it. lie was a man of experience in
tluit business, of ordinary intelligence, and entirelv familiar
Dec. 1903.] Cheistienson v. Kio Grande etc. Ey. Co. 947
with all the surrounding conditions. At the time of the injury
he was shoveling gravel upon the car at a place of his own se-
lection. He worked there in November and December, 1900,
then went to Ogden for several weeks, and when he returned
he resumed work at the gravel bank.
Eespecting these matters, the plaintiff himself, among other
things, testified : "During the time that we were working there
we undermined the bank some right along, and I did as much
as the rest. It was undermined in places, and then it would
cave down, first at one place, then at another, and so on, so that
at one time or another during the work it was undermined all
the way along from one end to the other. The men did the un-
dermining, and I was one of them, the pick being the main
thing used for this purpose. We undermined it in order to
remove the support. There were places at the upper end where-
the bank would be likely to fall if it stood perpendicular with-
out being undermined, the gravel being so loose that it would
not hold its own weight up, but at the point where I was hurt
the bank would not fall if it stood perpendicular. I knew this,
and, when I started to undermine it, I did so in order to get
it to fall at some time or another; I knew that the more I un-
dermined it the more likely the bank would fall When-
ever the track was close up to the bank, we would go up on top
of the bank and start to pick from the top, and throw it down.
We would pick down through the cement, and get it out. 1
did a good deal of this myself, so that I knew pretty well tlie
kind of material of which the bank was composed. I knew the
kind of material of wliich the bank was composed at the time I
was hurt, and also knew it at the time I was working there in
iSTovember ^^^ and Deceml)er." Speaking of what he and others
did just prior to the accident, the witness said : "He [foreman]
didn't tell us how to load the car, nor how to do our work, nor
wlierc to station ourselves. We went down to the car, picked
up our shovels, and selected our own places; Scarlcs and mv-
stlf being on one side of the car and the rest of the men, five
ill number, on the other. I was attending to mv work, bending
down shoveling. I did watch the bank, however, to see if there
should be anything to indicate a fall. I didn't think about
its falling, but I wanted to be on tlie lookout. Wlicn a bank
is undermined, you cannot tell but that it may fall anv minute.
I appreciated this. Somebody had told me tliat when a bank
was undermined it might fall any minute. Of course, this was
948 American State Reports, Vol. 101. [Utah,
the first time I had ever worked it. I would occasionally take
a look at the bank to see if there were any signs of falling, so
as to be prepared to run and get out of the way if it started to
come. I fully appreciated that there was some danger that it
might fall, and I wanted to be ready to run if it did. I didn't
have any idea that it would fall."
The witness Gurley, who was at work with the plaintiff when
the accident occurred, among other things, testified: "When I
went to work here after dinner, it was on the same side of the
car as Mr. Christienson and Mr. Searlos. We all went down
together, our tools being already there, for we had loft them
when we went to dinner. When we walked down there, we
selected our places to go to work, and I think 'Mv. Christienson
selected his. Seven of us went there and distrihuted ourselves
around the place as we pleased. As I stood there I saw the
bank, and it looked dangerous to me, because I thought it was
undermined too far. It was undermined fi-oni two In ihroo feet.
I watched it i)retty closely while I was working tliere, for I
expected the bank to fall in, so that if it started to fall T was
going to run. When it did fall it was for a distamo of nlio\it
thirty feet along the face of the haidc. ^•'** It didiTt fall u]) to
where I was, hut ]U'etty dose to me. Senrles I'an and ijot out of
Ih.e w;iv 1'he conditions there on the Itank were plain to
be se(;n. Anybody could look at it and see that it was undiM'-
iiiined. and that th.e hank uj) here had no direct su])port under
it. Anyone could s( e this who st(jod thei'C and looked at the
liank. 1 looke(l at the i>ank. and saw that it was dauLierous, and
concluded to stay then', and work and watch it, and take my
chances. Mr. ( 'hristieii,-on, hein^'- I'ii^ht by niy side, c(juli] >e(>
the dan,iier ju>t as 1 did. j'lyei'ylhinir that led nie to conclude
that it was danger(Uis was open, ol)yious, and plain to lie seen
with tlie eye. Anybody could see it.'' Testimony to the .-anu^
etlV'ct was e-i\(;n by other witnesses. When the plaint ill' re.-ted,
tlic defeiKhmt interposed a motion for a non.-uit, which was
denied ; and. th(.' dct'endant olVering no evidejice, the c/ase was
sulunilled lo the jury, whereupon a ycrdict was I'eturned in
lii\(»r of the plaintiir tor the sum of four thousand dollars,
'idiereafter, the plaintilT haying consente<l, at the instance of the
court to a reduction of the amount of the ycrdict to three thou-
sand dollars, judgment was entered accordingly, and the defend-
ant appealed.
Dec. 1903,] CiiRiSTiENSON v. Rio Grande etc. Ey. Co. 949
The appellant, in the first instance, insists that the court
erred in denying the defendant's motion for a nonsuit. The
motion was based, inter alia, on the ground that the plaintiff,
in entering upon the performance of the labor in which he was
engaged at the time of the accident, assumed the risks of the
injuries he sustained. It is urged that the undermining and
consequent falling of the bank was a part of the employment,
and that the company, under the circumstances, was not liable
for injuries received by the employe from the falling earth.
The respondent contends that the company was bound to furnish
the plaintiff a safe place to work, that he did not assume the risk
of the caving of the bank, and that the assumption *^'' of the
risk was not a question of law for the court, but one of fact
for the jury.
We think, under the evidence in this case, the motion for a
nonsuit was well taken, and that the contention of the respond-
ent is not tenable. The plaintiff has failed to show his employer
guilty of actionable negligence. He himself had full knowledge
of the premises, and was cognizant of the methods employed in
the service, and of the conditions existing there. This is man-
ifest from the evidence. It is true, the general rule is that,
where a master employs a servant, he must exercise ordinary
care to furnish the servant a reasonably safe place in which to
perform the service, and a failure to do so will render the
inastor liable for any injury the servant may receive because of
such failure; but such rule has no application to a case like the
one disclosed by the facts and circumstances in evidence herein,
where the very nature of the service is dangerous, and where its
dangerous character is obvious and is equally within the knowl-
edge of the servant and the master, and is com})rcben(led by the
servant. AMicre one engages in an employment obviously dan-
gerous, and knows tlie manner in which it is to be carried on, is
familiar with the conditions and surroundings, and is aware
that bis own work and that of his fellow-workmen will con-
stantly change its character, rendering it allernatelv safe and
dangerous, lie assumes the risks incident to the eniplovrnent.
This case clearly falls within such rule. The evidence shows
that the gravel bank at the place where the accident haj»pcnc(l
was at that time obviously dangerous; that j)laintifT selected
that particular place, where he was at work at the time of the
injury, of his own choice; that he was familiar witli the l)ank,
its conditions and surroundings, and acquainted with the char-
950 American State Reports^ Vol. 101. [Utah,
acter of the materials of which it was composed; that he knew
the bank was undermined at that particular place where he was
working; that he observed the bank, and realized that he was
al a dangerous place; that he was aware that the *^® bank
might cave and fall at any moment; that he had worked at the
bank in the same capacity on numerous previous occasions, and
was as familiar with it and the manner in which these opera-
tions were carried on as his employer, if not more so; that he
was aware that his own work and that of his colaborers rendered
the bank dangerous, and of a character continually changing;
and that he is a man of experience in that business and of or-
dinary intelligence. Where such facts as these are established
by the evidence, no court can hold the employer liable for in-
juries sustained by the employe. ISTor, under the conditions
shown to have existed at that bank, can an employer be required
to keep the place absolutely safe. To so require would be an
interference with a usual mode of conducting a private business,
which mode, although dangerous, is not of such a character that
the employe cannot avoid injury by the exercise of ordinary care
and prudence. Such an interference with a private enterprise
would be contrary to the well-settled law that an employer may
carry on his business in the way he may choose, although an-
other metiiod would be less dangerous, and, if the employe
knows the hazards incident to the business in the manner in
which it is carried on, and continues in the employment, he
a>?umes the risks of the more dangerous method. In this case
a part of the business was to undermine the bank for the pur-
pose of removing its sui)port so as to cause the gravel to break
away and fall down. The breaking away and falling of tlie
gravel was simply the result of natural laws, and tlie })laintiff,
as well as his associates, knew or ought to have known just as
much about the hazards connected with such business, and
about sucli manner of conducting it, as did the foreman or the
cinployi.'r. The employer, in the conduct of tlie oi)erations,
siiii}>lv took advantage of the laws of gravitation, with which
the ])huiitilT. ])eing a man of usual intelligence, must be pre-
sumed to liave Ijecn cognizant. He, having engaged in such
service, and consented to the manner in wliich ^'^'^ it was per-
formed, aware of the conditions of the bank and the dangers
incident to the employment, and having of his own volition
undertaken to perform the service at the place of injurv, tuust
be held to have assumed tlie ordinary risks of injury incident
Dec. 1903.] Christienson v. Eio Grande etc. Ey. Co. 951
to that service^ including the risk of the injuries he received
on the occasion in question, and cannot now be heard to com-
plain.
We are aware of no case where, under such facts and cir-
cumstances as are disclosed by this record, a recovery by an
employe against the employer was permitted by an appellate
court. In Naylor v. Chicago etc. Ey. Co., 53 Wis. 661, 11 N.
W. 24 — a case quite similar to the one at bar, except that the
superintendent of the work directed the plaintiff where to work,
while here the plaintiff chose his own place — 'Mr. Justice Lyon,
speaking for the court said: "Applied to this case, the law is
that if the plaintiff, when at work in the gravel bank on the day
he was injured, fully knew the hazards of the work — if he knew
he was at work in a dangerous place, and that the bank of earth
above was liable to fall upon him — he cannot recover in this
action. In that case it is quite immaterial that the work might
have been made safe by detaching earth from the bank above
him, or in any other manner. Having such knowledge, his
implied contract was that he assumed the hazards of the em-
ployment incident to the business as it was conducted." So, in
Swanson v. Great Northern Ey. Co., 68 Minn. 184, 70 N. W.
978, it was said: "It is the universal rule that, in performing
the duties of his place, a servant is bound to take notice of the
ordinary operation of familiar natural laws, and to govern him-
self accordingly. Failing to do so, he takes the consequences.
He cannot charge such consequences upon the master, when he
can see that wliich is open and apparent to a person of ordinary
intelligence. Tliis rule has been referred to and applied in tins
court on several occasions." In Simmons v. Chicago etc. E.
E. Co., 110 111. 340, it was observed: "If a servant, ^^o j^^q^^..
ing the hazards of his employment, as the business is conducted,
is injured while engaged therein, he cannot maintain an action
against the master for the injury merely on the ground that
tliere was a safer mode in which tlie business might have been
conducted, the adoption of which would have prevented tlie
injury.'' In Griffin v. Ohio etc. Ey. Co., 124 Ind. 326, 24 X.
E. 888, it was said: "It has been too long settled to now admit
of controversy that when a servant enters upon an emplovment
which is, from its nature, necessarily hazardous, he assumes the
usual risks and perils of the service. In such cases it is held
tliat there is an implied contract on the part of the servant to
take all the risks fairly incident to the service, and to waive any
952 American State Eeports, Vol. 101. [Utah,
right of action against the maptcr resulting from such risk."
Likewise, in Sullivan v. India M. Co., 113 Mass. 39G, the law
was thus stated : "When tlie servant assents to occupy the place
prepared for him, and incur the dangers to which he will be
exposed thereby, having sufficient intelligence and knowledge
to enable him to comprehend them, it is not a question whether
such place might, wdth reasonable care, and by a reasonable
expense, have been made safe. His assent has dispensed with
the performance on the part of the master of the duty to make
it so. Having consented to serve in the way and manner in
which the business was being conducted, he has no proper
ground of complaint, even if reasonable precautions have been
neglected" : Tederson v. City of Rushford, 41 Minn. 289, 42 X.
W. 10G3; Easmussen v. Chicago etc. Ry. Co., G5 Iowa, 330, 21
IS". W. 583 ; Eeiter v. Winona etc. Ey. Co., 72 Minn. 225, 75 N".
W. 219; Eegan v. Palo, G2 X. J. L. 30, 41 Atl. 364; Songstad
V. Burlington etc. Ey. Co., 5 Dak. 517, 41 N. W. 755; Swanson
V. City of Lafayette, 134 Ind. G25, 33 N. E. 1033; Galveston etc.
Ey. Co. V. Lempe, 59 Tex. 19 ; Olson v. McMullcn, 34 Minn. 94,
24 N. W. 318; Larich v. Moics 18 E. L 513, 28 Atl. 6G1; An-
derson V. Daly Min. Co., IG Ltiih, 28, 50 Pac. 815; Cisney v.
Pennsylvania etc. Co., 199 Pa. St. 519, 49 Atl. 309; Anderson
V. Winston (C. C), 31 Fed. ^^i 533; Gulf etc. Ey. Co. v.
Jackson, G5 Fed. 48, 12 C. C. A. 507; City of Minneapolis v.
Lundin, 58 Fed. 525, 7 C. C. A. 344.
The appellant has cited Allen v. Logan Citv, 10 Utah, 279,
37 Pac. 49G, in support of its contention in this case. But we
do not base our decision herein upon that case. There the plain-
tiff was summoned under the law to work out his poll tax. and,
obeying the summons, placed himself in the hands of an oflicer
Oi the defendant who had charge of the work, willing to obey
his directions. He had worked at that bank but two half days,
when, on tlie day of the accident, the defendant assigned him
to a dangerous position, where he had not been accustomed to
work, and failed to inform him of the existence of cracks on
top of tlic Ijank, wliich had been occasioned l)y the explosion of
giant powder by other laborers on the previous day, and which
could not be ohservcd from the place of work, and of the ex-
iitonce of which, as well as of the blasting, the plaintiff was in
total ignorance, but the defendant was aware of the same.
While the plaintiff was at work, ignorant of the condition of the
bank on top, and which condition was not open to his view, the
Jan. 1904.J Nash v. Clark. 953
bank broke away along the cracks, fell, and injured him. We
are of the opinion that to hold that, under such circumstances as
those, he could not recover, was extending the doctrine of as-
sumed risks too far, and therefore refrain from recognizing that
decision as controlling authority herein.
The conclusion, under the facts and circumstances in evidence
in this case, is irresistible that the motion for a nonsuit ought
to have been sustained. It seems the judge before whom the
case was tried, and who heard and observed the witnesses on the
stand, had been forced to the same conviction, when, in render-
ing his opinion on the motion, he said : "Personally, I regard it
as an accident, pure and simple, for which nobody was respon-
sible.'* We do not deem it important to pass upon any other
question presented.
The case must be reversed, with costs, and the *'*^ cause
remanded, with directions to the court below to set aside its
judgment, and enter judgment on the motion for nonsuit in
accordance with this opinion. It is so ordered.
Baskin, C. J., and McCarty, J., concur.
The Doctrine of Assumption of Risks is discussed in the monograpliie
notes to Houston etc. Ey. Co. v. De Walt, 97 Am. St. Kcp. 8S6-S96;
Brazil Block Coal Co. v" Gibson, 98 Am. St. Eep. 314-321; Wellston
Coal Co. V. Smith, 87 Am. St. Eep. 573-584. And see the recent cases
of McMillan v. North Star Min. Co., 32 Wash. 579, 98 Am. St. Eep.
90S, 73 Pac. 685; Grant v. Keystone Lumber Co., 119 Wis. 229, 100
Am. St. Eep. 883, 96 N". W. 535. For the application of the doctrine
to cases where banks cave in on workmen, see Western Stone Co. v.
Muscial, 196 111. 382, 89 Am. St. Eep. 325, 63 N. E. 664; Brown v.
Electric Ey. Co., 101 Tenn. 252, 70 Am. St. Eep. 666, 47 S. W. 415.
XASTI V. CLARfv.
[27 Utah, 158, 75 Pac. 371.]
EMINENT DOMAIN— Public Use.— Constitutional provisions
that private property shall uot be taken for public use without com-
pensation, mean that private property cannot be taken for strictly a
private use. (p. 956.)
EMINENT DOMAIN— Public Use.— Property is taken for a
public use, when the takiny is for a use that will promote the public
interests and will tend to develop the natural resources of tue state,
(p. 957.)
EMINENT DOMAIN— Public Use— Irrigation.— T lie owner of
an arid farm may, under the exercise of the rii^rht of emiucnt domain,
condemn a right of way through the ditch of another, for the purpose
954 American State Reports, Vol. 101. [Utah,
of carrying water to liis land for irrigation purposes. Such taking is
for a public use. (p. 959.)
EMINENT DOMAIN— Public Use.— Irrigation of lands is for
a public purpose, and water thus used is put to a public use. (p.
961.)
J. W. IST. ^\^litecotton, for the appellants.
Warner, Hentz, Prentiss & Warner, for the respondent.
i«» McCARTY, J. Plaintiff brought tliis action to condemn
a right of way in a ditch owned 'by the defendants. The pro-
visions of the statute upon which he bases his right of action,
so far as material to this case, are as follows: Revised Statutes
of 1898, section 3588, in part provides : "Suljject to the pro-
visions of this chapter the right of eminent domain may be
exercised in behalf of the following public uses : .... 5. Res-
ervoirs, dams, and water-gates, canals, ditches, flumes, tun-
nels, aqueducts, and pipes for supplying persons, mines, mills,
smelters, or other works for the reduction of ores, with water
for domestic or other uses, or for irrigating purposes, or for
draining and reclaiming lands, or for floating logs and lumber
on streams not navigable. G. Roads, railroads, tramways, tun-
nels, ditches, flumes, pipes, and dumping places to facilitate
the milling, smelting, or other reduction of ores, or the work-
ing of mines; outlets, natural or otherwise, for the deposit or
conduct of tailings, refuse, or water from mills, smelters or
other works for the reduction of ores, or from mines; mill
dams; .... also an occupancy in common by the owners or
possessors of different mines, mills, smelters, or other places
for the reduction of ores, of any place for the flow, deposit,
or con<luct of ta,ilings or refuse matter. ... 10. Canal-,
reservoirs, dams, ditches, flumes, aqueducts, and jiipes fur
supplving and storing water for tlie operation of machinery
for the purpose of generating and transmitting electricitv for
power, light, or heat." Section 1277 of the Revised Statutes
of 1808 is as follows: "Any person or corporation shall have
the right of way across and upon public, private, and corporate
lands, or otlu-r riglit of way, for the construf:lion. maintenance,
repair, and use of all necessary reservoirs, dams, wafpr-gates,
canals, ditebes, flumes, tunnels, or other means of securing,
storing, and conveying water for irrigation, or for anv neees-
Farv public use. or for drainage, uyton payment of just conifien-
sation therefor, ■'*^ but such ri.iibt of way shall in all oases
IfB exercised in a mann.er not to unnecessarily impair the prac-
Jan. 1904.] Nash v. Clark. 955
tical use of any other right of way, highway, or puhlic or pri-
vate road, nor to unnecessarily injure any public or private
property. Such right may be acquired in the manner provided
by law for the taking of private property for public use."
Section 1278 provides: "When any person or corporation de-
sires to convey water for irrigation, or for any other beneficial
purpose, and there is a canal or ditch already constructed that
can be enlarged to convey the required quantity of water, then
such person or corporation, or the owner or owners of the lands
through which a new canal or ditch would have to be constructed
to convey the quantity of water necessary shall have the right
to enlarge said canal or ditch already constructed by compen-
sating the owner of the canal or ditch to he enlarged for the
damage, if any, caused by said enlargement; provided, that
said enlargement is to be done at any time from the first day
of October to the first day of March, or at any other time that
may be agreed upon with the owner of said canal or ditch."
The complaint herein in substance alleges that plaintiff is
the owner of eighty acres of land situated in Utah county, this
state, which land, without irrigation, is arid, barren and un-
productive, but with irrigation would produce in abundance,
hay, grain and otber agricultural crops; tliat Fort Canyon crook
is a natural stream of water in Utah county, flowing from the
mountains north of plaintiff's land in a southerly direction
to ar.d near plaintiff's land, that the defendants o^\'n a tract
of land contiguous to and adjoining plaintiff's land on the
north, and are also the owners of a certain ditch loading from
Fort Canyon creek over and across tlieir land to a point within
one hundred feet of plaintiff's land, which ditch is a mile and
a quarter in length, eighteen inclios wide, and twelve inclio-
do(^]i ; that plaintiff owns water in Fort Canyon crook suihoionr
to irrigate his land above mentioned; that thore is no otlior
convenient or practicable ^***- way in which to divert the waters
of said creek and convey the same onto plaintiff's land except
by and through the ditch of defendants; that, in order to irri-
gate his land, it is necessary that plaintiif luive a right of wav
through defendants' ditch; that for plaintiif to enter upon de-
fendants' land to enlarge their diteh will not injure tlioni ; that
plaintiff requested of defendants that they allow him to fi:o onto
their land and enlarge their ditch, and use it for conducting
his water to and on his land, and olTorod to contribute his share
of the expense of maintaining the ditoh and all damages; that
the defendants refused to poruiit him to do so.
UjG Amekican State EEroiiTs, \"ol. 101. [Utah,
Plaintiff asks that he be permitted to enlarge defendants'
ditch to the extent of widening it one foot more; that he have
a perpetual right of way through said ditch when so widened
and constructed for the purpose of diverting and carrying his
water from Fort Canyon creek to his land for irrigation pur-
poses; that the damages for such right of way and use of the
ditch by plaintiff be fixed and determined^ and that upon pay-
ment by the plaintiff of such damages he have such ditch con-
denmcd to the extent of and to the use and for the purposes
al>ove set forth, and that defendapts be enjoined from in any
way or manner asserting any right antagonistic to this riglit
of plaintiff; that if plaintiff is permitted by decree of this
court to enlarge and use the ditch as aforesaid, his land can
be made productive and the use of the water to which plain-
tiff is entitled can and will be put to a beneficial and public
use in the irrigation of plaintiff's said land, and for no other
purpose. Defendants interposed a general demurrer to plain-
tiff's complaint, alleging that the complaint does not state facts
sufficient to constitute a cause of action. The demurrer was
overruled. The defendants elected to stand upon their de-
murrer, and tlie plaintiff introduced evidence in support of
the allegations of his complaint, and the court entered judg-
ment and decree in favor of plaintiff, condemning defendants'
land as prayed for in the ^*^ complaint; and for a reversal
of this judgment the defendants have appealed to this court.
AjipeUants contend that the order of the district court over-
ruling the dciinirrer was erroneous for the reason that the com-
plaint on its face shows that the use to be made of the prop-
erty sought to be condemned is strictly private, and in no sense
a public use. Both tlie constitution of the I'nited States and
the constitution of this state provide that '"private property shall
not be taken or damaged for public use without just compensa-
tion." This provision is construed to mean that private prop-
en v cannot he taken for strictly a private use, whicb counsel
for res])ondcnt concede to be the true and proper construction.
This brings us to the only question presented by this aiipcal,
to wit: Was the condemnation of appellants' land in tliis case
in law and in fact for a public use? There is no fixed rule
of law by which this question can be determined. In other
words, what is a pu])lic use cannot always be determined by
the application of purely legal principles. This is evident from
the fact that there are two lines of authorities, neither of which
attempt to lay down any iixed rule as a guide to be followed in
Jan. 1904.] Nash v. Clark. 957
all cases. One class of authorities, in a general way, holds
that by public use is meant a use by the public or its agencies — •
that is, the public must have the right to the actual use in
some way of the property appropriated; whereas the other line
of decisions holds that it is a public use within the meaning
of the law when the taking is for a use that will promote tlie
public interest, and which use tends to develop the great nat-
ural resojurces of the commonwealth. After a careful examina-
tion of the leading cases on this subject, we are of the opinion
that the class of decisions last mentioned is more in harmony
with enlightened public policy and that the liberal interpre-
tation given the term '^public *^^ use" which the legislature
has in effect, declared shall be followed in this state is far more
conducive to individual and public advancement than the re-
stricted construction adopted and followed by the line of de-
cisions first referred to.
The question of the manner of appropriation and use of
water for domestic, irrigation, mining and manufacturing pur-
poses is, and ever since the advent of the early pioneers has
been, the most important and vital of all industrial questions
with which the people within this arid region have been con-
fronted. Their requirements, and, we might add, their abso-
lute necessities, impelled the legislatures and courts at an carlv
date in the history of the states and territories strictly arid in
character to depart from and lay aside as impracticable soiiio
legal doctrines and rules relating to tlie control and use of
water which had theretofore been adhered to and followed for
ages, and to adopt and piit in operation a new system of acquir-
ing title in and to the streams which are within the arid belt,
the use of which was found to be indispensable in agricultural
pursuits, in mining, in the establishment of industries, and in
the general development of the arid states and territories. Bv
an examination of the records of the early cases in this state
(then territory) wherein the court declined to follow and be
governed by the common-law doctrine of riparian rights in
its entirety, the same arguments were advanced l)y those claim-
ing title to water under and by virtue of this doctrine as are
advanced by appellants in this case, to wit, that fundamental
rights were being interfered with, and the property of one citi-
zen was beiTig taken and given to another. We very mueli
doubt whether either advocate or layman, who has witnessed
the magnificent results wrought by the change, would now con-
tend that the constitution was overridden, or any natural or
058 Amkrican State Kepokts^ Vol. 101. [Utah,
legal right of the citizens invaded and their property eonfis-
cated, when the common-law doctrine of riparian rights was
modified for the purposes of irrigation and mining, and a sys-
tem for appropriating ^^* and acquiring title to water adopted
that made it possible for populous and flourishing common-
wealths to grow up wliere the country otherwise would have
remained a desert, uninhabited, with the possible exception
perliaps of an occasional cattle or sheep ranch. Tlie question
of how to increase the water supply in the arid region has
steadily grown in magnitude and importance until it has be-
come national as well as local. Congress realizing the great
public necessity for an increased water supply, and appreciat-
ing the great possibilities that may be accomplished in this
and other states and territories within the arid belt by con-
serving and storing the high and. surplus waters caused by the
melting snows which in the spring months come down from
the mountains in torrents, and are either wasted in the deserts
or find their way into box canyons, where they can never be
made availalile for irrigation or other useful purposes, hy a
provision in the enabling act (section 12) granted to this state
iive hundred thousand acres of public lands lying within the
state, with which to create a fund, to be used for the purpose
of building reservoirs; and later on, by an act known as the
'"irriLiation bill," created a fund from the public revenues,
which is swelling into the millions of dollars, for the purpose
of aiding in this most important of all enterprises of a public
character in the arid west, and upon the success of which its
future growth and j^rosperity largely depends. The large ex-
])cn(liture of public funds in this direction is not to bo made
for the purpose of enabling the states and territories directly
beneHted thereby, in their sovereign capacitv, to engage in farm-
ing and other lines of indu.-try, which are dependent upon the
v.atcr supply, but to ultimately enable tlie citizens, as individ-
uals, to ])rovido themselves with homes, and to furnish addi-
tional oiijKir;unities for tlie further development of the great
natural resource.-; with which the arid region abounds. These
quc.-tions. which are the most important with which the arid
Slates and tcri'itiu-irs have had to deal, and the successive steps
that have lieen taken in '*^"'' advancing our svstcm of irrii;a-
tion. are referred to for tlie purpo-e of showing the interest
that the public have always had and must of necessitv continue
to liave in the question of irrigation. The natural physical
conditions of this state are such that in the great majoritv of
Jan. 1904.] Nash v. Clakk. 959
cases the only possible "way the farmer can supply his land with
water is by conveying it by means of ditches across his neigh-
bor's lands which intervene between his own and the source
from which he obtains his supply. The question before us not
only involves the right of the farmer to invoke the law of
eminent domain, when necessary, to enable him to convey water
to his farm, but that of the miner, manufacturer, and per-
sons engaged in other industrial pursuits to build canals, flumes,
and lay pipe lines over adjoining and intervening lands, when
necessary for the purpose of conveying water necessary for the
successful prosecution of their respective enterprises. The
future growth, prosperity, upbuilding and industrial expansion
of the state not only depend upon the storing and holding back
the high and surplus waters so they can be used in times of
scarcity, but also in a careful and judicious husbandry of the
supply now available; and it is entirely within the province
of the legislature to enact such laws respecting the appropria-
tion and distribution thereof as will tend to prevent unneces-
sary loss and waste, so long as vested rights are upheld and
maintained. Experience has sho^^Ti that, the greater the amount
of water flowing in a ditch of a given size and grade, the less
the percentage of seepage and evaporation. Therefore, as a
general rule, the owners of canals and ditches, instead of being
damaged by their enlargement and the turning therein of an
additional quantity of water, as is proposed in this case, will
at least in times of scarcity during the hot summer months,
and especially during the periods of protracted droughts, which
have become so common of late years in this state, be benefited
thereby, besides receiving the market value of tlic land con-
demned. In view of the physical and climatic ^*''*^* conditions
in this state, and in the light of the history of tlio arid west,
which shows the marvelous results accomplished by irrigation,
to hold that tbe use of water for irrigation is not in any sense
a public use, and thereby place it within the power of a few
individuals to place insurmountable barriers in the way of the
future welfare and prosperity of the state would be giving to
tlie term "public use'' altogether too strict and narrow an in-
terpretation, and one we do not think is co]iteniplatcd by the
constitution.
The foregoing conclusions are supported by abundant au-
thority : 10 Am. & Eng. Ency. of Eaw, 2(1 ed.. lOGl, and cases
cited. In the case of Davton Minino; Co. v. Seawcll, H Xev.
960 American State Keports^ Vol. 101. [Utah,
394, the plaintiff sought to condemn a right of way over cer-
tain lands to a mining claim owned by plaintiff, to be used
for the purpose of 'transporting wood, lumber, timbers and
other material to enable it to conduct and carry on its business
of mining. The claim was made in that case, as it is in this
that the statute under which the action was brought was uncon-
stitutional for the same reasons as are urged in the case hefore
us. Mr. Chief Justice Hawley, speaking for the court, says :
"That mining is the paramount interest of the state is not
questioned. That anything which tends directly to encourage
mineral developments and increase the mineral resources of
the state is for the benefit of the public, and is calculated to
advance the general welfare and prosperity of the people of
this state, is a self-evident proposition. Hence, it necessarily
follows that, if the position contended for by the petitioner is
correct — and I believe it is — then the act is constitutional, and
should be upheld. Although other and weaker reasons have
been more frequently assigned, it seems to me that this is the
true interpretation upon which courts have really acted in sus-
taining the right of eminent domain in favor of railroads and
other objects, and in several of the decided cases this reason is
expressly given Xow, it happens, or at least is liable to
happen, that individuals, by receiving the title ^^' to barren
lands adjacent to the mines, mills or \\orks, have it wjrliin their
power, by unreasonably refusing to part with their lands for a
just and fair compensation to greatly embarrass, if not
entirely defeat, the business of mining in such localities. In
my opinion, the mineral wealth of this state ought not to be loft
undeveloped for any quantity of land actually necessary to en-
able the owner or owners of mines to conduct and carry on the
business of mining. Xature has denied to this state many of
the advantages wliich other states possess, but l)y way of com-
pensation to the citizens has placed at her doors the richest
and most extensive silver dej)osits ever yet discovered. Tlie
j»n'sent ])rosperity of the state is entirely duo to the mining de-
vel<){)nicnts already made, and the entire pe()j)le of the siate
are directly interested in having the future development un-
obstruiied by tlie obstinate action of any individual or in-
dividuals." In the case of (Jury v. Coodwin, 3 Ariz. 2.")5. '^(5
Pac. 370, practically the same question was involved as is pre-
sented here, and the supreme court of Arizona, in an elaborate
and exhaustive o])inion, in which many cases are cited and re-
viewed, held that the use of water for iri'igation is a public use,
Jan. 1904.] Nash v. Clark. 9G1
and that an act of the Arizona legislature, providing for the
condemnation of lands for canal purposes, was constitutional :
r>e Graffenried v. Savage, 9 Colo. App. 131, 47 Pac. 902;
Yunker v. Nichols, 1 Colo. 551; Schilling v. Eominger, 4 Colo.
100. In the case of Fallbrook Irr. Dist. v. Bradley^ 164 U. S.
112, 17 Sup. Ct. Rep. 56, 41 L. ed. 369, the court, in the course
of the opinion, says: "On the other hand, in a state like Cali^
fomia, which confessedly embraces millions of acres of arid
lands, an act of the legislature providing for their irrigation
might well be regarded as an act devoting the water to a public
use, and therefore as a valid exercise of the legislative power.
.... To irrigate, and thus to bring into possible cultivation
these large masses of otherwise worthless lands, would seem
to be a public purpose, and a matter of public interest, not con-
fined to the land owners, ^^^ or even to any one section of the
state. The fact that the use of the water is limited to the land
owner is not, therefore, a fatal objection to this legislation." In
conclusion the court on this point further says : "We have no
doubt that the irrigation of really arid lands is a public purpose,
and the water thus used is put to a public use" : EUinghouse v.
Taylor, 19 Mont, 462, 48 Pac. 757. There are many other
well-considered cases which declare the same general doctrine
as those referred to, but we deem it unnecessary to make further
citations.
The judgment of the district court is affirmed; the costs of
this appeal to bo taxed against the appellants.
Bartch, J., concurs.
Baskin, C. J., dissents.
As to What is a Puhlic Use within the meaning of the law of emi-
nent domain, see the recent cases of Fallsburg etc. Mfg. Co. v. Alex-
ander, 101 Va. 98, 99 Am. St. Kep. 855, 43 S. E. 194; Healv Lumber
Co. V. Morris, 33 Wash. 490, 99 Am. St. Eep. 9G4, 74 Pac. 6S1; Gav-
lords V. Sanitary Dist., 204 111. 576, 98 Am. St. Kep. 235, 68 N. B.
522; monographic note to Beekman v. Saratoga etc. E. R. Co., 22
Am. Dec. 687-707. And as to whether property may be taken, under
the power of eminent domain, for the purpose of furtherincr irriga-
tion or drainage, see In re Madera Irrigation Dist., 92 Cal." 296,^27
Am. St. Eep. 106, 28 Pac. 272, 675, 14 L. E. A. 755; Paxton etc. Land
Co. v. Farmers' etc. Land Co., 45 Neb. 884, 50 Am. St. Eep. 585, 64
N. W. 343, 29 L. E. A. 853; Matter of Tuthill, 163 N. Y. 133, 79 Am.
St. Eep. 574, 57 N. E. 303, 49 L. R. A. 781.
Am. St. Rep., Vol. 101—61
962 American State Reports, Vol. 101. [Utah,
COLE V. EICHARDS lERIGATIOX COMPANY.
[27 Utah, 205, 75 Pac. 376.]
WATEBS — Eights of Appropriators. — If the waters of a nat-
ural stream have been appropriated according to law, and put to a
beneficial use, tne rights thus acquired carry with them an interest
in the stream from the points where the waters are diverted to the
source from which the supply is obtained and any interference with the
stream by a person having no interest therein, to the damage of the
appropriator, is unlawful and actionable, (p. 965.)
WATERS — Unlawful Interference with. — A Constitutional
provision that "all existing rights to the use of any of the waters
of this state for any useful or beneficial purpose are hereby recog-
nized and confirmed," puts it beyond the power of any person to
lawfully go upon a stream of water in which he has acquired no right,
and interfere with existing rights, or to destroy or cut off the source
of supply, of such stream, although it consists of a pond or a lake,
(p. 965.)'
WATEBS — Appropriation — Sources of Supply. — If lakes form
a part of the source of supply of a creek, and with the exception of
one of such lakes form a part of the natural channel of one of the
tributaries of such creek, prior appropriators of the waters of the
creek are entitled to the same usufructuary rights to the waters which
naturally flow and collect in such lakes, and which eventually find
their way into the main channel, as they have to the balance of the
natural flow of the creek, (pp. 965, 966.)
J. ^r. Tliomas and Pierce. Critchlow & Barrctte, for the ap-
pellants.
Sulliorlanrl. Van Cott & Allison, for the respondents.
2o« :\IcCARTY, J. This is an action to quiet title to six reser-
voir sites and to all surjdus waters that flow into said sites fronr
the country surroundinir them, and to restrain defendants from
interferinir with any of the reservoirs and reservoir sites, dams,
})ead,i:ates, or other improvements thereon, or from appropriat-
inir to their own use any of the waters stored or to be stored
therein. Four of these reservoir sites are situated within the
watershed and near the headwaters of Little Cottonwood
Canvon, and the other two reservoir sites are situated lower
down, and on the main channel of Little Cottonwood creek. The
c( niplaint contained three causes of action. The first and sec-
end causes of action were to recover (lama<xes from defendants
for their alleired wronirful interference with some of the reser-
voir sites, and the alle^^ed appropriation of the waters stored
tlierein; and the third cause of action to quiet plaintiffs' title
to tlie several sites and to all surjilus waters flowin^ir tlierein. and
to enjoin defendants from interfering with plaintiff's rights to
Feb. 1904.] Cole v. Eichards Irr. Co. 963
the same. Defendants demurred to the first and second causes
of action, which demurrer was sustained by the court. The
plaintiffs declined to amend, and the case was tried on the is-
sues raised by the allegations of the third cause of action, and
defendants answered thereto.
The complaint alleges and the answer admits that Little
Cottonwood creek is a natural stream of water, which from time
immemorial has flowed continuously through Little Cottonwood
Canyon; that for many years the natural and ordinary waters
of said stream constituting the primary waters thereof have been
and are now -**'' appropriated by farmers and others residing!
in Salt Lake county, Utah, to useful and beneficial purposes;
that the volume of waters flowing continuously at all seasons of
the year through Little Cottonwood creek and constituting the
primary waters thereof is a stream equal to one hundred and
eighty-five and thirty hundredths cubic feet per second ; that the
waters of said creek are derived from various springs, lakes and
other natural sources of water supply, and all are tributary to
said creek, and lie within the watershed thereof, and at times
tliere is a surplus of waters in excess of said primary waters.
11 further appears from the record that at different times be-
tween the first day of October, 1892, and the fifteenth day of
July, 1896, plaintiiTs and their predecessors in interest located
the reservoirs mentioned, viz., Eed Pine Eescrvoir No. 1, Eed
Pine Eeservoir Xo. 2, White Pine Eeservoir No. 3, Minnie Lake
Eeservoir, Alta Eeservoir, and Gadd Valley Eeservoir. Plain-
tiffs in due time posted notices of their intention to appropriiT.to
for storage in these reservoirs, when completed, the surplus and
unappropriated waters that flowed in and through the several
reservoir sites mentioned, had surveys made of the sites, and
filed plats of the same in the LTnited States land office at Wasli-
ington, D. C. Some work was done on the several sites thus
claimed and located. Small embankments of earth and stone
were thrown up across the outlets of the lakes, trenches were
dug therein, and hcadgates constructed, so that a portion of the
natural storage water could be drained off. All of these reser-
voir sites except Alta and Gadd Valley are small natural lakes
situated on and near the head of tributaries of Little Cotton-
wood creek. These lakes, which are nothing more tlian small
basins in the canyons, of a few acres each, are supplied and
filled with waters which eventually find their way into said
creek. The defendants concede the right of plaintiffs to dam
up the outlets of the lakes and hold back the surplus and unap-
964 American State Reports, Vol. 101. [Utah,
propriated waters that flow therein, but deny their right to
lower the outlets and drain the lakes of water which the
^**® plaintiffs have not held back and stored by means of tlieir
artificial embankments; whereas the plaintiffs claim the right to
not only draw off the surplus waters stored by them, but to cut
down tlie natural barriers at the outlets, and drain the lakes of
the water which nature has stored therein. This appears to be
about the only material controverted question involved in the
ease, as the evidence shows that the Alta and Gadd Valley
reservoirs are uncompleted, and in no condition to hold water.
A. F. Doremus, the state engineer, was called as a witness,
and testified that he made an examination of the lakes in 1901,
and found that Red Pine No. 1 is formed by a natural barrier
across the bed of the canyon, composed of large cubes of granite^
earth and gravel. Through this barrier the plaintiffs had cut
a channel from seven to eight feet in depth in which a culvert
had been built. "Above this lake, and in the same neighbor-
hood, were three others. The only overflow that was apparent
was from the lower lake. From the second lake you could hear
the water running, but you could not see a continuous stream.
You could see it in places between the spaces in the rocks. It
escaped from this barrier, and discharged into the other lake.
This, in a general way, describes the situation. As to the art-
ificial work done on Red Pine No. 1, my opinion is that it is
not capable of storing water to any greater extent tlian the
natural barrier would have done. In the first place, it was not
mueh, if any, higher. In the second place, it was not con-
struct(>(l in a manner that would hold water as well as the
natural barrier. It would be like substituting a leaky barrel
for a tight barrel. It is not calculated to hold water. Tbere
v,as a small overflow at Red Pine Xo. 1." 1'he record sliows
that practically the same conditions existed at the other lakes.
It will thus be observed tliat the work done on the several reser-
voirs was not of a character to increase their capacity for holdino-
water. Therefore, the only change made by plainti fi's affecting
tliC volume of water in ^oo Little Cottonwood creek was to
drain tlio lakes in a few days by drawing therefrom large quan-
tities of water, which from time immemorial had graduallv,
during the hot summer months, when most needed, found its
way into the main channel of the creek. I'he effect of the
course thus pursued by plaintiffs was to diminish, rather than
increase, the supply of water in this creek. 1'he court found
the issues in favor of the defendants, and plaintiffs appealed.
Feb. 1904.] Cole v. Eichards Ier. Co. 965
It is settled in tliis arid region by abundant authority that
when the waters of a natural stream have been appropriated
according to law, and put to a beneficial use, the rights thus
acquired carry wdtli them an interest in the stream from the
points where the waters are diverted from the natural channel
to the source from which the supply is obtained, and any inter-
ference with the stream by a party having no interest therein
that materially deteriorates the water in quantity or quality
previously appropriated, to the damage of those entitled to its
use, is unlawful and actionable: Kinney on Irrigation, 249;
Bear Eiver & Auburn Water etc. Co. v. New York Min. Co., S
Cal. 327, 68 Am. Dec. 325; Hill v. King, 8 Cal. 337; Butte
Canal etc. Co. v. Vaughn, 11 Cal, 143, 70 Am. Dec. 769; Phoe-
nix Water Co. v. Fletcher, 23 Cal. 482 ; Natoma Water etc. Co.
V. McCoy, 23 Cal. 491 ; Stein Canal Co. v. Kern Island Irr. Co..
53 Cal. 563; Lobdell v. Simpson, 2 Nev. 274, 90 Am. Dec. 537.
Section 1, article 17 of the constitution of Utah provides that
"all existing rights to the use of any of the waters of this state,
for any useful or beneficial purpose, are hereby recognized and
confirmed." It wall thus be observed that the organic law of
this state has put it beyond the power of any party to lawfully
i;o upon a stream of water in which he has acquired no right,
Tiud interfere with existing rights, or destroy or cut off the
source ^^^ of supply of such stream because it happens to be a
I ond or lake. It is a matter of common knowledge that soine
of the most valuable and permanent sources of water supply
in this state are its numerous lakes, which bodies of water vary
in size from a few square rods to several townships of land in
extent, and sections 12()5 and 1266 of the Bcvi^cd Statutes of
1898 recognize the rights that have been acquired by appropri-
ation of the waters of the lakes, as well as other natural sources
of supply witliin the state.
It is conceded that respondents are, and for many years have
been the owners of and entitled to the use of all the normal
How or primary waters of Little Cottonwood creek. TlKM'ofore,
in the light of the foregoing principles, the only question for
our determination is, Do the natural waters of the lakes under
consideration form a part of the source of supply of Little Cot-
tonwood creek? If they do, then the judgment of the district
court must be affirmed. The great preponderance of the evi-
dence not Only shows tliat the lakes in question form a part of
the source of supply of this creek. l)ut, with tlie exception of
the upper lake, they form a part of the natural channel of one
966 American State Reports, Vol. 101. [Utah,
of its tributaries; hence it necessarily follows that respondents
have the same usufructuary rights to the waters which natu-
rally flow and collect in these lakes, which eventually find their
way into the main channel, as they have to the balance of the
natural flow of the creek: Malad Valley Irr. Co. v. Campbell,
2 Idaho, 411, 18 Pac. 52. While it is the policy of the state
to encourage enterprises which tend to increase the available
supply of water in the state, yet parties engaged in these laud-
able undertakings must respect the vested rights of others to
the streams and other sources of water supply throughout the
state accrued to them by prior appropriation.
The judgment is affirmed; the costs of this appeal to be taxed
against appellants.
Baskin, C. J., and Bartch, J., concur.
A Prior Appropriator nf the Wafer of a natural stream spouros a
property right therein: Farm Investment Co. v. Carpenter, 9 Wvo.
110, Sr^Am. St. Rep. 918, 61 Pac. 258. See, too, Willev v. Decker,
]1 Wyo. 490, 100 Am. St. Eop. 939, 73 Pac. 210; Walsh v. Wallace,
26 Xev. 299, 99 Am. St. Kep. 692, 67 Pac. 914. A prior appropria-
tor of -water from the main stream is not siibject to suhsequenb
::ppropriation from its tributaries by others: Striekler v. Colorado
.^■printjs, 16 Colo. 61, 25 Am. St. Eep. 245, 26 Pac. 313; Farmers'
etc. Ditch Co. v. Agricultural Ditch Co., 22 Colo. 513, 55 Am. St.
.icp. 149, 45 Pac. 444.
nEAVEY V, COMMEl^CIAL XATIOXAL BANK.
[27 rtah, 222, 75 Pa.-. 727.]
FORGERY — Negotiable Instruments. — If a liank by mistako
informs a person that it holds a deposit of iiioiiev to liis criMlit, and
the addressee requests a draft for the amount, and upon receivinif
such draft indorses it, receiving the nnuioy^ Jils indor.>''n)>'ut ddc-i
not constitute forL.'-ery. (]>. 9<i;i.j
NEGOTIA.BLE INSTRUMENTS— Negligence of Drawer.— If
the drawer of a bill of cxch:uige, draft or clieck has been induced
through fraud to deliver it to au impostor, lielieviug liiiu to l)e tlie
real person named tlierein, and such impostor negotiates the in-
^inwicni. a!id rrci'ivc-s ]iayinent therrou from an innocent tiiird jier-
son, as lietween the b(ma fide holder and drawer, the latter must
siaud the h'ss. ( p. '.>', h. ;
BANKS AND BANKING— Negotiable Instrixments— Negli-
gence of Indorsee. — It' u !i;ink by mistake informs a person that it
iiolds a certain sum of money on deposit to his credit, and he
shows the letter so inlnrmin^r lo a tlnrd person, and requests from
tiie bank a draft for the amount of the deposit, which, when re-
ceived he indorses to such third person, who pays him the amount
of the deposit, as between such third person and the bank the latter
must bland the loss. {[>. 97u.;
Feb. 1904.] Heavey v. Commercial Nat. Bank. 2&t
Heywood & McCormick, for the appellant.
Henderson & MacMillan, for the respondent.
^* McCARTY, J. The transactions and circumstances out
of which this action arose are as follows :
On November 10, 1902, one P. M. Cushnahan deposited with
defendant bank the sum of three hundred and seventy-five dol-
lars for the credit of one James Molloy. The same day the
clerk of defendant bank wrote such information upon a
^^^ postal card addressed to James Molloy, Corinne, inclosed
such postal card in an envelope, which he by mistake addressed
to James Malloy, Denver, Colorado. This card was received
by one James Malloy, of Denver, who on November 17th, wrote
defendant bank as follows:
"Denver, Colo., Nov. 17, 1902.
"T. D. Ryan, Cashier, Ogden, Utah.
"Dear Sir: Your P. C. of the 10th received. Please send me
ISew York draft for the $375.00, less vour charfres.
"JAMES MALLOY.
"2219 Larimer street, Denver, Colo."
Before sending: the letter, Malloy showed it to plaintiff herein.
I'pon receipt of this letter, and believing it came from its de-
]iositor, in compliance therewith, defendant bank made out the
following draft:
"Commercial National Bank,
"No. 14,601. Ogdcn, Utah, Nov. 20. 1902.
"Pay to the order of James ]\Lalloy, throe Inindrod and sev-
enty-four and sixty one-hundredths ($374.60) dollars.
"P. T. ITFME,
"Cashier.
"To Kountze Bros.. Bankers, New York.''
This draft was inclosed with the follov/ing letter, wliieh was
forwarded to the address indicated in Malloy's letter of No-
vember 17th, which was plaintiff's place of business:
^ "' "Ogden, Utah, Nov. 20, 1902.
"Mr. James ^Malloy, Denver. Colo., 2219 Larimer St.
"Dear Sir: Complying with yours of the 17th, we inclose
New York draft for $374.00.
"Yours trnlv,
"T. D. PYAN,
"Cashier.
9G8 Ameiucan State Reports^ Vol. 101. [Utah,
When tlic draft arrived in Denver, the letter in which it was
inclosed was received by plaintiff and by him handed to James
Malloy, whom he ^^'^ had known for a couple of years. The-
letter was opened and the draft produced in plaintiff's pres-
ence, and thereupon James Malloy requested plaintiff to go with
him to the bank and get the money, which plaintiff did. lie
identified him there as James IMalloy, but was requested by
the bank to place his (plaintiff's) name upon the back of the
draft. This being done, the money was handed to plaintiff, and
l)y him then and tliere delivered to ]\ralloy. On Xovember 20th
James ]\Iolloy (the real party for whom the money was depos-
ited) came into the bank, and it was then discovered that a
mistake had been made, and the bank imposed upon by the !Mal-
loy letter of Xovem1)er ITtlu The payment of the draft wa*^
immediately sto]q:)ed in Xcw York and an effort made to stop
payment in Denver. When, in due course of business, the draft
reached Xew York payment was refused, and the draft was
protested and returned to tfie Denver bank, wliicli bank there-
upon charged the amount of the draft against plaintiff's ac-
count. James ^Malloy, of Denver, disappeared immediately
after the draft was cashed ])y the Denver bank. It appears tliat
tlie defendant bank was well acquainted with the signature of
James Molloy, of Corinne, both from seeing it upon his checks
drawn against his deposits in the bank, and also as indorsed
upon the back of dividend checks, he being a stockholder of
llie defendant bank. Tlie account of James Mollov in the bank
was carried in the name of James ]\Iall(»v. hut his signature
and indorsements were always 'Mames ^lolloy." The cause
was tried by tlie court sitting without a jury. '^^Fbo court, after
hearing the evidence, found the issues in favor of plaintilT, and
rendered judgment in his behalf for the amount of the draft
and intci'cst tlu^rcfin. Defendant l)ank aiqieals.
Appellant contends that James !Malloy, having procured the
firaft by art i flee and fraud, acquired no right ^'-^^ or title to tl'O
same, and that his indorsement, wliich appellant insists was a
forgcrv, could not and did not in\est res]i()nd(>nt with any leiial
]-iglit to recover on the instrument which ]\lalloy himself did not
])Ossess, however innocent and free from blame the resjiondcnt
may have been in the part he took in the transaction which
eventually put him in possession of the draft. The rul^ con-
tended for by appellant lias been held to apply to cases in which
the draft or bill has be<'n lost or stolen, and then negoiiated
upon a forged indorsement, but the fact- in this case do not
Feb. 190i.] Heavey v. Commercial Xat. Bank. 969
bring it within that rule. The draft in question was issued by
appellant on Malloy's order, in his favor, and he is the man
to whom it was sent. True, appellant at the time believed him
to be the James jMoUoy, of Corinne, in whose favor the deposit
was made against which the draft was supposed to have beenj
drawn. The fact, however, remains that James Malloy, of Den-
ver, is the man to whom the draft was sent. The record ahows
that when he negotiated the instrument he made no attempt
to impersonate some other person, and he indorsed it by writing
liis own name on the back thereof without any intention tliat
his signature should be taken for that of any other person. Un-
der .these circumstances, whatever crime Malloy may have com-
mitted by procuring and negotiating the draft in the manner
he did, it is evident that his indorsement of it did not constitute
forgery : 2 Bishop's Criminal Law, 583. Even if Malloy's in-
dorsement of the draft were construed to be a forgery, it could
not, in the face of the admitted facts in this case, and the great
M-eight of judicial authority, affect the result. While there*
are a few cases which hold to the contrary, yet the majority of
the decisions which we think contain the better reasoning hold
that, where a drawer of a check, draft or bill of exchange has
been induced, through fravid, to deliver it to an impostor, be-
lieving him to be the person named in the check, draft or bill
oi exchange, and the impostor negotiates the instrument, and
receives payment thereon from an innocent ^^^ third party, as
between the bona fide holder and drawer, the latter must stand
the loss: Land etc. Trust Co. v. ISTorth western Xat. Bank, 19G
Pa. St. 230, 79 Am. St. Rep. 717, 4G Atk 420, 50 L. E. A. 75;
United States v. National Ex. Bank (C. C), 45 Fed. 163; Eob-
ertson v. Coleman, 141 ^lass. 231, 55 Am. l\ep. 471, 4 X. E.
619; Crippen v. American Xat. Bank, 51 ]\lo. App. 50<S; Bur-
rows V. Western Union Tel. Co., 86 Minn. 490, 91 Am. St. Bcp.
380, 90 N. W. 1111, 58 L. R. A. 433; Emporia Xat. Bank v.
Sholwell, 35 Kan. 360, 57 Am. Eep. 171, U Tac. 141.
In this case it appears tliat appellant was well acquainted
v/ith the signature of James Molloy, of Corinne, who was l)oth
a depositor and a stockholder of defendant bank, and that his
signature is easily distinguished from that of James ]\rallov,
of Denver, Colorado, to whom the draft was sent. Xot only
is there a marked dissimilarity Ijctween the signatures of the
two men, but their names are spelled difTerently. Therefore, it
is manifest that, if a])i)ellant had exercised ordinary care and
prudence at the time it received the order from James Malloy,
^70 American State Reports, Vol. 101. [Utah,
of Denver, for the draft, it would not have been possible for
him to have perpetrated the fraud and procured the draft.
Not only did appellant fail to exercise ordinary business cara
on this occasion, but accompanied the draft with a letter which,
was sufficient to enable Malloy to dispel every doubt that the or-
dinary business man might entertain as to the regularity of the
transaction that put him in possession of the instrument. The
rule is tersely, and, we think, correctly, stated in the case of
Crippen v. American Xat. Bank, 51 Mo. App. 508. as follows:
''Tliat when both parties to a transaction are innocent, and the
loss must fall upon one, it should be upon the one wlio in law
most facilitated the fraud." Appellant, having issued and
placed in the hands of an impostor its draft, a negotiable instru-
ment that is accepted and exchanged with almost the same de-
gree of confidence in commercial centers as are national bank
notes, ought not to be permitted to repudiate it, and compel
respondent, who honestly ^^^ and in good faith became an in-
dorser, to stand the loss, which the record shows was made pos-
sil)le by appellant failing to observe the usual and customary
business rules followed by banking-liouses and other commercial
institutions in issuing this class of paper. As was said by the
court in the case of Levy v. Bank of Aui.erica, 24 La. Ann. SiO.
1?, Am. I\op. 124: "The plaintiffs cannot successfully complain
tliat the l)ank failed to protect them from the devices of a ]ier-
son who liad witli so little effort deceived and defraudcl thorn.
.... It seems to us tluit they are endeavoring to make tb.c
bank repair a loss which they brought on themselves l)y their
own cai-elessness/' In this <ase it was not shown, nor is it
claimed, that there was anv fact or circumstance connected
with the transaetion bv whieh resi)ondent became tiK^ owner of
the draft in ([uestion that would have justified the sliglitest
suspicion on his part that ^Nlalloy obtained it by fraud; but, on
the other hand, he knew that .Mallov had sent an order I'or tlie
draft, whieh, when issued, was forwarded to respondent's [dace
oi Imsine-s, the letter opened in h.is presence, and the draft pro-
duced and ^liowu to him by a man whom he had known for
two years. I'nder these circumstances respondent did no moi'(!
in identifving .Mallov and indoi'sing the draft than any busi-
ness man of ordinary prudence would have been justified in
doing under the same or similar circumstances.
We are of the opinion, and so hold, that appellant, by its own
carele^.-uesB having furnished ]\Iallov the means bv which he
March, 1904.] Block & Griff v. Schvv artz. 971
perpetrated the fraud, ought to stand the loss occasioned
thereby.
The judgment is affirmed, with costs.
Baskin, C. J., and Bartch, J., concur.
For Authorities bearing upon the decision in the principal case,
see Land Title and Trust Co. v. Northwestern Nat. Bank, 196 Pa.
St. 230, 79 Am. St. "Rep. 717, 46 Atl. 420, 50 L. K. A. 75; Burrows
V. Western Union Tel. Co., 86 Minn. 499, 91 Am. St. Rep, 380, 90 N.
"W. 1111; First Nat. Bank v. City Nat. Bank, 182 Mass. 130, 65 N.
E. 24, 58 L. E. A. 433, 94 Am. St. Eep, 637, and monographic note.
BLOCK & GRIFF v. SCHWAETZ.
[27 Utah, 387, 76 Pac. 22.]
CONSTITUTIONAL LAW.— Statutes will not be Declared
Void simply because, in the opinion of the court, they are unwise,
or opposed to justice and equity. Statutes must in some way violate
constitutional provisions in order that they may be declared void.
(p. 974.)
CONSTITUTIONAL GUARANTY that No Person Shall b3
Deprived of life, liberty or property, without due process of law
embraces not only freedom from servitude and from imprisonment
and arbitrary restraint of person, but also all our religious, civil,
political and personal rights, including the right in each subject to
purchase, hold, and sell or dispose of his property in the same way
that his neighbor may, and of such "liberty" no one can be de-
prived without due process of law. (p. 976.)
CONSTITUTIONAL LAW— Liberty to Sell Property.— V
statute which deprives an owner of his "liberty" to sell his prop-
erty, or contract in relation thereto, in the same nmnner as others
engaged in the same business may lawfully do, invades his guaran-
teed constitutional rights, and cannot be upheld, (p. 977.)
CONSTITUTIONAL LAW — Exercise of Police Power,—
Neither the legislature nor the executive can, under the guise of
police regulation, arbitrarily or unjustly, without good cause, restrict
or infringe upon the property rights or the liberty of any person
within the protection of the constitution, and whenever the legis-
lature undertakes to determine what is a proper exercise of the
police power, its determination is a subject of judicial scrutiny, (p,
y^u.)
CONSTITUTIONAL LAW — Police Power may be exercise!
to promote the safety, health, comfort and welfare of society, and
to sustain legislation as a proper exercise of such power, it must
have rclerence to some such end. (p. 980.)
CONSTITUTIONAL LAW.— Exercise of Police Power does
not justify the enactment of a statute prohiliitiug solvent mer-
chants from disposing of their stock of goods in bulk without
noiifyiiig their creditors, (pp. 9S0, 951.)
1)72 American State Eeports^ Vol. 101. [Utah,
CONSTITUTIONAL LAW— Statutes Regulating Sale of Stock
of Goods in Bulk. — A statute prohibiting, under a penalty, any mer-
chant, wliethcr solvent or insolvent, from selling or disposing of his
stock of goods in bulk, -without an inventory thereof, and notifica-
tion to his creditors, and which applies also to persons acting in a
fiduciary capacity and under judicial process, and which dors not
apply to merchants who are not indebted, is unconstitutional as de-
priving a solvent merchant of his propertv and liberty to contract
without due process of law, and as being class legislation, (p.
981.)
CONSTITUTIONAL LAW.— Statutes Which Punish Crimin-
ally One Person for the doing of an act which anotlior person in the
same line of business may lawfully do, are unconstitutional, as be-
ing class legislation, and as a deprivation of property and liberty
w^ithout duo process of law. (p. 986.)
Zane & Stringfellow, for the appeUant.
W. E. Huthinson, for the respondent.
^^ BARTCIT, J. This action was orifrinally hronaht in a
justice's court on April 2, 1902, to recover two hundred and
seventy-seven dollars and forty-seven cents for merchandise
sold and delivered to the defendant ^^^ Schwartz. On the
same day, at the instance of the plaintiffs, the goods were at-
tached wliile in the possession of the intervener, John ]\Iann,
to whom Schwartz had previously, on March 29, 1902, sold and
delivered the same for tlie sum of five hundred and fifty dollars,
wliicli was its fair value, tlic purchase having; hecn made in
good faith. After tlie writ of altachmeut was levied upon the
goods the purchaser filed his conijilaint in intervention, claim-
ing to own all the property included in the levy, and praying
that the attachment he dissolved, and the goods restored to his
possession, and for damages and costs. 2scitlier the seller nor
the purchaser made an inventory of the merchandise before sale,
as required by the act approved ]\rarch 14, 1901 (Utah Se^s.
Laws, p. G7, c. G7) ; nor did they in other respects comply with
the rc'iuirements of that act. The cause was first tried in the
justice's court, where judgment was rendered in favor of tlie
intervener, and then appealed to and tried in the district court,
wlicre the sale was held fraudulent and void under the statute
referred to, and judgment rendered in favor of the plaintiffs.
The a]»peal to this court presents simply the question of the con-
stitutionality of the law relating to the sale of merchandise in
bulk, found in that enactment.
The appellant contends that the act is unconstitutional and
void, and that, therefore, he cannot he ])unished for a violation
of its provisions. lie insists that it is repugnant to and in
March, 1904.] Block & Griff v. Schwartz. 973
conflict with both federal and state constitutions, in that it
abridges and interferes with the inherent and inalienable rights
which are guaranteed to every subject by both constitutions.
The respondent contends that the act is not in conflict with
the supreme law, but is the result of a proper exercise, by the
legislature, of the police power of the state. In determining
the question thus presented it behooves us to be mindful of the
fact that the enactment in controversy has, in the judgment of
both the legislative and executive branches of the state govern-
ment, been declared a valid exercise of legislative power. Courts
^^2 will always approach such a judgment with that considera-
tion and respect which is due to the co-ordinate branches of the
government, and if, upon an examination and comparison of the
enactment with the constitutional provisions which it is claimed
to violate, there is a well-grounded doubt of its validity, such
doubt must be resolved in favor of its constitutionality. If,
however, notwithstanding the enactment was passed with all
due deliberation and formalities, it be found to contravene
constitutional provisions, or to constitute an infringement upon
the rights of individuals guaranteed by tlie constitution, then
the courts have the conceded power to declare void the enact-
ment, as being a violation of tlie supreme law of the land. But,
although such power is lodged in the courts, they will not de-
clare void a legislative enactment unless there is a substantial
conflict 'between it and the constitution; and so high a regard
do the courts entertain for the judgment of the makers of the
law that in determining the validity of an enactment every
presumption will be indulged in favor of its constitutionality.
The question of the validity of a legislative act can alone be
determined by reference to the constitutional inhil)itions and
restraints. Whenever as to any subject within the jurisdiction
of the state, the constitutions of the state and of the United
States are silent, the legislature may speak; and when it does
speak its enactment will not be declared void simply because,
in the opinion of the court, it is unwise, or opposed to justice
and equity. The sole question in such case is whether the act
violates the supreme law of the state or of the United States.
If it does, it is the plain duty of the courts to declare its in-
validity. The question under consideration must be determined
in the light of these principles, which have been frequently
assorted by the courts.
Section 1 of the act in controversy roads: "A sale of anv
portion of a stock of merchandise otherwise than in the ordinary
97-i American State EEroRTS, Vol. 101. [Utah,
course of trade, and in the regular and usual prosecution of the
seller's business, or a sale of ^^^ an entire stock of merchandise
in bulk, is fraudulent and void as against the creditors of the
seller, unless the seller and purchaser shall at least five days
before the sale make a full and det-ailed inventory, showing
the quantity, and so far as possible, with the exorcise of reason-
able diligence, the cost price to the seller of each article to be
included in the sale, and unless such purchaser shall at least
five days before the sale, in good faith, make full and explicit
inquiry of the seller as to the names and places of residence or
places of business of each and all of the creditors of the seller,
and the amount owing each creditor, and unless the purchaser
shall at least five days before the sale, in good faith, notify, or
cause to 'be notified, personally or by registered mail, each of
the seller's creditors of whom the purchaser has knowledge or
can with the exercise of reasonable diligence acquire knowledge,
of said proposed sale, and of the said cost price of the mer-
chandise to be sold and of the price proposed to be paid therefor
by the purchaser." Section 2 makes the violation of the pro-
visions of tlie first section a misdemeanor, and prescribes a
penalty thereof. Under the provisions of the act a sale of
any portion or all of a stock of merchandise, made out of the
ordinary course of trade, by any merchant who has creditors,
without a detailed inventory made at least five days before the
sale, showing the cost price of each article, and notice of the pro-
l)osed sale, the cost pi'ice, and selling price, given at least five
days before the sak' to each creditor, is not only fraudulent
and void, but also renders both the seller and purchaser guiltv
of a misdemeanor, and subjects them to the penaltv provided
in the act for that crime. Xot only this. l»ut the merchant,
though ever so solvent and able to pay his dchts, must, in order
to effect a sale of the whole or any portion of his stock out of
the usual course of trade, expose the secrets of his busin(>ss to
every ])erson who may seek to l)uy and to whom he mav desire
to sell, as well as to every creditor. The making of inventories
and giving notices as required by the act, it can "'*""* readily
bo seen, would, in many instances, almost absolutelv prohibit
the consummation of such sales. Such would doubtless be the
])ractical operation of the act in its application to large depart-
ment stores, where the creditors are numerous, and the stock
of merchandise immense. The lapse of time necessarilv in-
cident to a compliance with the provisions of the act would have
a strong tendency to prevent advantageous sales by the class of
March, 1904.] Block & Griff v. Schwartz. 975
merchants affected. In many instances it would, doubtless,
require many days, or even months, to complete such an in-
ventory and give such notices; and in active business com-
munities purchasers are not likely to look with much favor on
such delays. In this age of competition it is quite apparent
that this would place such a merchant at a great disadvantage
in his struggles to provide for his family — in competing with
his neighbor who has no creditors. These same disadvantages
would likewise follow the purchaser of the merchandise, in his
endeavor to again dispose of the goods if he should happen to
be a debtor.
The act appears to be unreasonably restrictive, and is liable
to subject individuals to punishment for acts wholly innocent.
It seems calculated to inflict upon the seller the loss of an ad-
vantageous sale, and cause the purchaser to refrain from mak-
ing what might to him be an advantageous purchase, because
of the risk of delay. It is favorable to one class of merchants
and unfavorable to another, and thus places competitors in the
same line of business upon different planes. In its operation,
as to one class of merchants, it brands as criminals persons
perfectly solvent, and abundantly able to discharge their debts
and obligations, for making bargains according to customs and
usages which have prevailed in the commercial world from
time immemorial, while as to the other class the same bargains
would be lawful. It holds out advantages to one and denies
them to another, both pursuing the same business for a liveli-
hood. As to the debtor class, it prevents a free exchange of
lawful commodities, and thus ''^^^ operates in restraint of trade.
Undoubtedly, the legislature has power to legislate as to the
general right of debtors to dispose of their property, and in en-
acting such legislation the legislature has tbe right to consider
the debtors right of disposal of his property by contract or
otherwise in connection with tbe general right of creditors to
have afforded an opportunity to collect their claims; but such
legislation must not transcend constitutional limitations, or
invade the guaranteed rights and liberties of individuals. If
within such limitations, such legislation will be uplicld, altbougb
it be deemed unwise, or, in its operation, unfair and unjust. So
the act in question, as we have seen, would evidently, in its
general operation, result unjustly and unfairly; yet, if it docs
not trench upon constitutional law, it cannot be held void.
The appellant, however, claims that tbe enactment interferes
with and abridges his inalienable rights, as well as those of
976 American State Eeports, Vol. 101. [Utah,
others in like situation, subjects of this commonwealth; and
for his and their protection against the consequences which nat-
urally flow from such an enactment he appeals to section 1,
article 14, of amendments to the constitution of the United
States, which, on this subject, provides: "No state shall make
or enforce any law which shall abridge the privileges or im-
munities of citizens of the United States; nor shall any state
deprive any person of life, liberty or property, witliout due pro-
cess of law; nor deny to any person within its jurisdiction tlie
equal protection of the laws." For like reasons he appeals to
section 1, article 1. of the constitution of this state, which inter
alia, provides: "All men have the inherent and inalienable right
to enjoy and defend their lives and liberties; to acquire, pos?(>ss
and protect property; .... to assemble peaceably, protest
against wrongs, and petition for redress of grievances''; and
also to section 7 of article 1, which provides: "Xo person shall
be deprived of life, liberty or property, witliout due process of
law." These constitutional provisions constitute the supreme
law of the ^'"^^ commonwealth upon this subject. To that law
the executive, the legislative, and the judicial departments of
the government alike must l)0w obedience, as well as every sub-
ject. It forbids the abridgment by the state of the privileges
and immunities of all citizens. Under its mandate no person
can be do]) rived of life, lilierty, or property without due process
of law, and every person is entitled to the equal protection of
the laws, and may acquire property, possess and protect it, as
well as defend his life and liberty. These are inherent and
inalienalile rights of citizens, and are constitutional guaranties.
An enactment, therefore, which deprives a person arbitrarily of
his propertv, or of some ])art of his personal lil)erty, is just
as much iiiliibitod Ijv the supreme law as one which would de-
prive him of life. And "liberty.'' in the sense in Avhieh the
turm is here emploved, is not restricted to mere freedom from
imprisonment, but it embraces the right of a person to use his
God-given powers, employ his faculties, exercise his judgment
in the affairs of life, and to be free in the enjoyment and dis-
posal of his acquisitions, subject only to such restraints as are
iniiiosed by the law of the land for the ])ul)lic welfare. The
word "liberty," as thus employed in the constitutions and un-
derstood in the United States, is a term of comprehensive scoj)e.
It embraces not only freedom from servitude and from iin-
prisonment and arbitrary restraint of person, but also all our
March, 1904.] Block & Griff v. Schwartz. 977
religious, civil, political, and personal rights, including the right
in each subject to purchase, hold, and sell or dispose of property
in the same way that his neighbor may; and of such liberties
no one can be deprived except by due process of law.
Property has some essential attributes without which we could
not conceive it to be property. Among these are use, enjoy-
ment, susceptibility of purchase, sale and of contracts in rela-
tion thereto. The taking away of any one of the essential at-
tributes may violate the constitutional guaranty that no person
shall be deprived of his property without due process of law as
^^"^ clearly as in case of a physical taking without due process
of law. An enactment, therefore, like the one in controversy,
which deprives an owner of his liberty to sell his property, or
contract in relation thereto, in the same manner as others en-
gaged in the same business might lawfully do, invades his rights
guaranteed by the constitution, and cannot be upheld; and to
prevent the free exchange and sale or disposal of property ac-
cording to the immemorial usages of trade is to deprive it of
one of its main attributes. "The third absolute right, inherent
in every Englishman," says Sir William Blackstone in his classi-
fication of fundamental rights, "is that of property, which con-
sists in the free use, enjoyment, and disposal of all his acquisi-
tions, without any control or diminution, save only by the laws
of the land" : 1 Blackstone's Commentaries, 138. The right
thus referred to and defined by the illustrious commentator is
absolute and inherent in every American, subject of the United
States, by virtue of the supreme law of the land. Therefore,
"when a law annihilates the value of property, and strips it of
its attributes, by which alone it is distinguished as property, the
owner is deprived of it according to the plainest interpretation,
and certainly within the spirit of a constitutional provision in-
tended especially to shield private rights from the exercise of
arbitrary power" : Wynehamer v. People, 13 IST. Y. 378, 398.
Judge Cooley, in his work on Constitutional Limitations, sixth
edition, 484, speaking of doul)tful or quostiona])le legislation,
says: "The dou])t might also arise whether a regulation made
for any one class of citizens, entirely arbitrary in its character,
and restricting their rights, privileges, or legal capacities in a
manner before unknown to tbe law, could be sustained, notwith-
standing its generality. Distinctions in these respects must rest
upon some reason upon which they can be defended — like the
want of capacitv in infants and insane persons; and if tlie legis-
Am. St. Rep., Vol. 101-G2
978 American State Eeports^ Vol. 101. [TJUh,
lature should undertake to provide that persons following some
specified lawful trade or employment should not have capacity
^^^ to make contracts, or to receive conveyances, or to build
such houses as others were allowed to erect, or in any other way
to make such use of their property as was permissible to others,
it can scarcely be doubted that the act would transcend the due
bounds of legislative power, even though no express constitu-
tional provision could be pointed out with which it would come
in conflict. To forbid to an individual or a class the right to
the acquisition or enjoyment of property in such manner as
should be permitted to the community at large would be to
deprive them of liberty in particulars of primary importance
to their 'pursuit of happiness.' " In Bank v. Divine Grocery
Co., 97 Tenn. G03, 37 S. W. 390, it was said : "To take froin
property its chief element of value, and to deny to the citizen
the right to use and transfer it in any proper and legitimate
manner, is as much depriving him of his property as if the
property itself were taken." In People v. Otis, 90 X. Y. -±8,
it was said : "Depriving an owner of property of one of its essen-
tial attributes is depriving him of his property within the con-
stitutional provisions.'' In State v. Goodwill, 33 W. Va. 179,
25 Am. St. Rep. 863, 10 S. E. 285, 6 L. R. A. 621, it was said:
"The right to use, buy and sell property, and contract in re-
spect thereto, including contracts for labor — which is, as we
have seen, property — is protected by the constitution. If the
legislature, without any public necessity, has the power to pro-
hibit or restrict the right of contract between private persons
in respect to one lawful trade or business, then it may prevent
the prosecution of all trades, and regulate all contracts."' So,
in State v. Loomis, 115 Mo. 307, 22 S. W. 350, 21 L. 1?. A.
789, it was observed: "Liberty, we have seen, includes the right
to acquire property, and that means and includes the right to
make and enforce contracts. We do not say that such rights
cannot be regulated by general law, but we do say that the
legislature cannot single out one class of persons who are com-
petent to contract, and deprive them of riglits in that respect
wliicli are accorded ^^" to other persons. The constitutional
declaration that no person shall be deprived of life, liberty, or
])roperty without due process of law was designed to protect
and preserve their existing riglits against arbitrary legislation
as well as against arbitrary executive and judicial acts. The
sections of our statute in question deprive a class of persons of
March, 1904.] Block & Gkiff v. Schwartz. 979
the right to make and enforce ordinary contracts, and they in-
troduce a system of state paternalism which is at war with the
fundamental principles of our government, and as we have be-
fore said, are not due process of law." People v. Gillson, 109
K Y. 389, 4 Am. St. Eep. 465, 17 N. E. 343, is a case where
the legislature had passed an act prohibiting the sale or dis-
posal of any article of food, or any offer or attempt to do so,
upon any representation or inducement that anything else would
be delivered as a gift, prize, premium, or reward to the pur-
chasers, and provided that any person violating any of its
provisions should be deemed guilty of a misdemeanor. Mr.
Justice Peckham, holding the enactment unconstitutional and
void, in the course of his opinion, said: "It cannot be truth-
fully maintained that this legislation does not seriously infringe
upon the liberty of the owner or dealer in food products to pur-
sue a lawful calling in a proper manner, or that it does not,
to some extent at least, deprive a person of his property by cur-
tailing his power of sale; and unless this infringement and
deprivation are reasonably necessary for the common welfare,
or may be said to fairly tend in that direction or to that result,
the legislation is invalid, as plainly violative of the constitu-
tional provision under discussion." Again, he said: "Nor can
this act stand as a valid exercise of legislative power to enact
what shall amount to a crime. The power of the legislature to
so declare is exceedingly large, and it is difficult to define its
exact limit. But that there is a limit even to that power, under
our constitution, we entertain no doubt, and we think that limit
has been reached and passed in the act under review. The
power has been unlawfully exercised in this instance '^^^ for
the same reason that we have already stated — because it violates
the constitutional pro\'ision which secures to each person in this
state his liberty and property, except as he shall be deprived of
one or both by due process of law." In Butchers' Union Co.
V. Crescent City Co., Ill U. S. 746, 4 Sup. Ct. Rep. 652, 28 L.
ed. 585, Mr. Justice Field, speaking of constitutional rights,
said: "Among these inaliena])le riglits, as proclaimed in that
great document, is the right of men to pursue their happiness,
by which is meant the right to pursue any lawful business or
vocation in any manner not inconsistent with the equal rights
of others, which may increase their prosperity or develop their
faculties, so as to give to them their highest enjoyment. The
common business and callings of life, tlie ordinary trades and
980 American State Reports, Vol. 101. [Utah,
pursuits, wliich are innocuous in themselves, and have been
followed in all communities from time immemorial, must
therefore be free in this country to all alike upon the same
conditions. The right to pursue them without let or hindrance,
except that which is applied to all persons of the same age,
sex, and condition, is a distinguishing privilege of citizens of
the United States, and an essential element of that freedom
which they claim as their birthright": Matter of Application
of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636 ; City of Clinton v.
Phillips, 58 111. 102, 11 Am. Rep. 52; State v. Julow, 129
Mo. 163, 50 Am. St. Rop. 443, 31 S. W. 781, 29 L. R. A. 257;
Millet V. People, 117 111. 294, 57 Am. Rep. 869, 7 N. E. 631;
Wally V. Kennedy, 2 Yerg. 554, 24 Am. Dec. 511; People v.
Marx, 99 N. Y. 377, 52 Am. Rep. 34, 2 N. E. 29 ; Yick Wo v.
Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064, 30 L. ed. 220.
ISTor can the act be sustained, in its present form, as a proper
exercise of tlie police power of the state. That power, though
somewhat shrouded in mystery as to its limits, whicli are not
easy to prescribe with precision, has stood sponsor for multi-
tudes of legislative enactments; but such enactments were
novertlicless always bound to be within constitutional limits.
^^* The power, however broad and eoni])r(^h<'nsiv('. is not para-
mount to tlie constitution, l)ut is always bounded ])y its provi'
sions. ]f. tbcrcforc, an act of the legislature is repugnant to
a provision of the constitution, it cannot be held valid as a
proper exorcise of llie police power. Likewise, if a right of
propertv or of juM'snn 1)0 protected by the constitution, it can-
not l;e destroyed by any exercise of the police power either by the
legislature or the executive power of the state.
Xeitbor the legislature nor the executive can, under the guise
of police regulation or otherwise, arbitrarily or unjustly, with-
out good cause, restrict or infringe upon the propci'ty rights
or the liljerty of any subject within the protection of the su-
preme law; and whenever the legislature undertakes to deter-
mine wliat is a pr()]>er exercise of police power, its determination
is a subject for judicial scrutiny. The power may be exercised
to jjroiuote tlie safety, health, comfort and welfare of society,
and to sustain legislation as a projier exercise of the police
jiower it must liave reference to some such end. By virtue of
that power the use of property is regulated by enforcing the
maxim, "Sic utere tuo ut alienum non laedas." The enact-
ment in controversy does not appear to have reference to either
March, 1904.] Block & Griff v. Schwartz. 981
of the objects here indicated. It can hardly be said that a law
which prevents a person, though indebted, who is abundantly
able to pay his debts, from selling his property in the same way
his neighbors do, and in accordance with a time-honored cus-
tom or usage, either promotes the safety, health, comfort or
welfare of the community or the state. If the act referred gen-
erally to insolvent debtors it would present a different question;
but it relates simply to debtors and purchasers of debtors of a
particular and specified business, whether solvent or insolvent;
so that the merchant who is worth a fortune over and above his
indebtedness, and who is able to respond instantly to his cred-
itors, who may be only such because of convenience *^^ in
trade and business transaction, nevertheless finds himself, under
the provisions of the act, deprived of the liberty to sell his
goods, or to contract in relation thereto in the same manner
that others engaged in the same business may lawfully do. Not
only this, but by making a sale which would be perfectly law-
ful if made by his neighbor, both he and his purchaser become
criminals, and amenable to the penalty provided in the act.
Looking again at the provisions of the enactment, it will be
observed that it aims at but one kind of business — the mercan-
tile— and impliedly and arbitrarily divides those engaged there-
in into two classes. The merchants of the one class being un-
affected in their property rights, may make sales and contracts
in relation thereto as they see fit; while the same kind of sales
and contracts, if made in the same manner by the merchants of
the other class, are not only declared void, but will render both
the sellers and purchasers liable to criminal prosecution. The
enactment, as we have seen, not only places the debtor class in
the mercantile business at a great disadvantage in competing
with others in the same line of business, but its provisions are
exceedingly strict and oppressive. Xor do its provisions apply
generally to all debtors within the commonwealtli. They apply
only to merchants, who are debtors, while farmers, miners,
manufacturers, traders and other dealers, though debtors, may
sell and dispose of their property when and as they please so
long as they act in good faith. If the act is designed to pre-
vent fraud, why not make it general? Looking alone at tlie
Oebtor class, there appears to be such a discrimination as is
difficult to reconcile with justice and fair dealing. Xor do we
jjerceive any justification for restraining a merchant who is in
debt, but solvent, from selling his merchandise, in whole or in
983 Amekican State Keports, Vol. 101. [Utah,
part, as he may deem most advantageous, in order to prevent one
who is insolvent from exercising the same privilege.
There is another feature which must be deemed quite material
in determining the validity or invalidity '***^ of this legislation.
Under the terms of the act "a sale of any portion of a stock of
merchandise," or "a sale of an entire stock" in bulk, made other-
wise than as in the act provided, "is fraudulent and void as
against creditors," and renders both the seller and buyer liable
to criminal prosecution. Now, it will be noticed that nowhere
in its provisions is there an exemption of any sale by admin-
istrators, executors, trustees, assignees for the benefit of cred-
itors, trustees in bankruptcy, or public officers acting under
judicial process. There being no such exemption, it would
seem that such sales of merchandise owned by debtors, made by
persons acting in a fiduciary capacity or under judicial process,
must also be made in accordance with the provisions of the act,
in order that the seller and purchaser may avoid the penalties
provided. It is evident that such a law would not only deprive
property of one of its chief attributes, but would greatly hamper
the administration of estates and retard the enforcing of judicial
jjroccss. Nor is this law necessary for the public weal. Broad
and extensive as the public power of a state is, it cannot be as-
sumed that it warrants such legislation as this. It is true, tliere
are extreme cases where the exercise of that power is justified
by the maxim, "Salus populi suprema lex est," and so, in some
cases of great emergency and overruling necessity, the taking or
destruction of property, even without compensation and witliout
due process of law, may be justified; but such is not th.is case.
The police power can never avail to declare an act valid wlicn
the constitution says it is invalid. "The limits to the ex(>rcise of
the police power can only be this: the regulation must have
reference to the comfort, the safety, or the welfare of society;
it must not be in conflict with the provisions of the Constitu-
tion": Potter's Dvvarris on Statutes and Constitution, 458.
Speaking of the regulation of the conduct of corporations
whose charters are inviolable, by the legislature, under the police
power. Judge Cooley says: "The limits to the exercise of the
police power in these '***'* cases must be this: The regulations
must have reference to the comfort, safety or welfare of society.
They must not be in confliet with any of the provisions of the
charter; and they must not, under pretense of regulation, take
from the corporation any of tlie essential rights and privileges
March, 1904.] Block & Griff v. Schwartz. 983
which the charter confers. In short, they must he police reg-
ulations in fact, and not amendments of the charter in curtail-
ment of the corporate franchise" : Cooley's Constitutional Lim-
itations, 6th ed., 710. In Watertown v. Mayo, 109 Mass. 315,
12 Am. Eep, 694, Mr. Justice Colt said : "To a great extent the
legislature is the proper judge of the necessity for the exercise
of this restraining power. It is not easy to prescribe its limit.
The law will not allow rights of property to he invaded under
the guise of a police regulation for the preservation of health
or protection against a threatened nuisance ; and when it appears
that such is not the real .object and purpose of the regulation
courts will interfere to protect the rights of the citizen.'' In
Matter of Application of Jacobs, 98 N. Y. 98, 50 Am. Eep. 636,
Mr. Justice Earl says : "Generally it is for the legislature to de-
termine what laws and regulations are needed to protect the
public health and secure the public comfort and safety ; and while
its measures are calculated, intended, convenient and appropriate
to accomplish these ends, the exercise of its discretion is not
subject to review by the courts. But they must have some rela-
tion to these ends. Under the m.ere guise of police rcgTilations
})erBonal rights and private property cannot be arbitrarily in-
vaded, and the determination of the legislature is not final or con-
clusive. If it passes an act ostensibly for the public health, and
thereby destroys or takes away the property of a citizen, or in-
terferes with his personal liberty, then it is for the courts to
scrutinize the act, and see whether it really relates to and is
convenient and appropriate to promote the public health."
Again, referring to the same subject, he says: "Such legislation
may invade one class of rights to-day and another to-morrow,
and, if it can be '*^** sanctioned under tlie constitution, wliile far
removed in time, we will not be far away in practical statesman-
ship from those ages when governmental prefects supervised
the building of houses, the rearing of cattle, the sowing of seed,
and the reaping of grain, and governmental ordinances regulated
the movements and labor of artisans, the rate of wages, the price
of food, tbe diet and clothing of the people, and a large range
of other affairs long since in all civilized lands regarded as out-
side of governmental functions. Such governmental interfer-
ences disturb the normal adjustments of the social fabric, and
usually derange the delicate and complicated machinery of in-
dustry, and cause a score of ills while attempting the removal of
one." In the Slaughter-House Cases, 16 Wall. 36, 87, 21 L. ed.
981 American State Eeports, Vol. 101. [Utah,
394, Mr. Justice Field, referring to the police power of the state,
said: "All sorts of restrictions and burdens are imposed under
it, and when these are not in conflict with any constitutional
prohibitions or fundamental principles they cannot be success-
fully assailed in a judicial tribunal But under the pre-
tense of prescribing a police regulation the state cannot be per-
mitted to encroach upon any of the just rights of the citizen
which the constitution intended to secure against abridgment."
So, in Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. Eep. 499, 38
L, ed. 385, Mr. Justice Brown said : "To justify the state in thus
interposing its authority in behalf of the public, it must appear :
1. That the interests of the public generally, as distinguished
from those of a particular class, require such interference; and,
2. That the means are reasonable for the accomplishment of the
purpose, and not unduly oppressive upon individuals. The leg-
islature may not, under the guise of protecting the public in-
terests arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful occupation.
In other words, its determination as to what is a proper exercise
of its police powers is not final or conclusive, but is subject to the
supervision of the courts'^ : Tiodeman's '**^^ Limitation of Police
Power, sees. 85, 194; State v. Julow, 129 Mo. 1G3, 50 Am. St.
Rep. 443, 31 S. W. 781, 29 L. P. A. 257; Ex parte Whitwell,
98 Cal. 73, 35 Am. St. Pep. 152, 33 Pac. 870, 19 L. P. A. 727;
Austin v. Murray, 16 Pick. 121 ; Coiiimonwealth v. Alger, 7 Cusli.
53, 85; Ex parte Sing Lee, 96 Cal. 354, 31 Am. St Eep. 218,
31 Pac. 245, 24 L. E. A. 195; Coe v. Schultz, 47 Barb. 64; Lake
View V. Eose Hill Com. Co., 70 111. 191, 22 Am. Eep. 71; Bcr-
tholf V. O'Eeilly, 74 N. Y. 509, 30 Am. Eep. 323; Muglcr v.
Kansas, 123 U. S. 623, 661, 8 Sup. Ct. Eep. 273, 31 L. ed. 205.
The respondents cite and rely upon several cases from the
states of Massachusetts, IVfaryland, Tennessee, and Washington,
where enactments upon the same subject were enforced. While
enactments of simihar character have been upheld in those
states, an examination sliows that they all differ materially in
important features from tlie one here under consideration. The
law in Massachusetts exempts all sales from its provisions
made by officers acting in a fiduciary capncity or under judi-
cial process; and, while it declares a sale made in violation of
its provisions fraudulent and void as against creditors, it docs
not subject tlie seller and buyer acting in disobedience of the
law to criminal prosecution: ^Mnss. Stats. 1903, p. 389, c. 415.
Notwithstanding tliis, however, it seems apparent from the
March, 1904.] Block & Griff v. Schwartz. 985
opinion in Squire & Co. v. Tellier (Mass.), 69 N. E. 312,
that the supreme court of that state regarded their statute as
going to the very limit of constitutional authority, when they
said: "Although the requirements of the act are very strict,
we cannot say that the determination of the legislature, as be-
tween the interests of owners of stocks of merchandise and
their creditors, was so far wrong as to render the statute uncon-
stitutional." We apprehend, from a perusal of that opinion,
that if there, as here, the determination of the legislature had
gone to the length of applying the provisions of the act to per-
sons acting in a fiduciary or official capacity and under judicial
process, and provided ^®'' criminal punishment for the persons
affected if they disobeyed such provisions, the court would have
hesitated before pronouncing the act constitutional.
Under the act of the state of Maryland, a sale made in dis-
(.bedience of the statutory provisions is not absolutely fraudu-
lent and void, as under our enactment, but is simply "pre-
sumed to be fraudulent and void as against the creditors of the
selled'': Md. Laws 1900, p. 907, c. 579. In the case cited
from that state the question of the constitutionality of the act
was neither presented nor decided : Hart v. Eoney, 93 Md. 433,
49 Atl. 661.
So, under the act of Tennessee, a sale made in disobedience
of the provisions thereof is only "presumed to be fraudulent
and void as against creditors of the seller" : Tennessee Acts,
1901, p. 234, c. 133. The supreme court of Tennessee held
the act valid, Mr. Justice Wilkes dissenting: jSTeas v. Borches,
109 Tenn. 398, 97 Am. St. Eop. 851, 71 S. W. 50.
It will be noticed that in none of the acts thus far referred
to, except in our own, is disobedience of tlic provisions thereof
by the seller and buyer made a criminal offense. The supreme
court of Missouri, in State v. Julow, 129 Mo. 1G3, 50 Am. St.
Rep. 443, 31 S. W. 781, 29 L. R. A. 257, determining the
validity of an act somewhat similar in character to the one
here under consideration, said: "If an owner," etc., "obevs
the law on which this prosecution rests, he is thereby deprived
of a right and a liberty to contract or terminate a contract
as all others may. If he disobeys it, then he is punished for
the performance of an act wholly innocent, unless, indeed, the
doing of such act giiarantecd by the organic law, the exercise
of a right of which the legislature is forbidden to deprive him,
can, by that body, be conclusively pronounced criminal. We
deny the power of the legislature to do this- — to brand as an
986 American State Reports^ Vol. 101. [Utah,
offense that which the constitution designates and declares to
be a right, and therefore an innocent act; and consequently
we hold that tlie statute which professes to "**** exert such a
power is nothing more or less than a 'legislative judgment,'
and an attempt to deprive all who are included within its terms
of a constitutional right without due process of law."
The provisions of the act of the state of Washington (Sess.
Laws 1901, p. 222, c. 109) are so materially different from
those of our enactment that the case of JMcDaniels v. Connelly
Shoe Co., 30 Wash. 549, 94 Am. St. Eep. 889, 71 Pac. 37, 6U
L. R. A. 947, cited by respondents, as sustaining the statute
of that state, cannot be regarded as authority herein. Xor,
for the reasons given, can any one of the cases, from the sev-
eral states referred to, be relied upon as controlling authority
in this case.
While it is within the province of the legislature to prevent
fraudulent sales as a protection to creditors, still, when it at-
tempts to do this — to remove one evil — it must not so restrict
individual rights and disturb industrial pursuits and usages
as to cause a score of wrongs.
We are of the opinion tliat tlie enactment in controversy
abridges some of the inalienable rights of persons guaranteed
by the constitution ; tlmt it is not a proper exercise of the police
power of the state; that it deprives property of one of its chief
attributes, and some persons of the liberty to dispose of prop-
erty as others may; that it punishes criminally one person for
the doing of an act which another person in the same line of
business may lawfully do ; that it deprives the persons to whom
it applies of a right of property without due process of law;
and that, therefore, it is null and void.
The judgment must be reversed, with costs, and remanded,
with directions to the court below to proceed in accordance
herewith. It is so ordered.
Baskin, C. J., and McCarty, J., concur.
CONSTITUTIONALITY OF STATUTES REGUXATING THE SALE
OF STOCKS OF MERCHANDISE IN BULK.
Statutes somewhat similar to that involved in the principal case
have been recently enacted in a number of the states, among thorn
being California, Maryland, Massachusetts, Tennessee, Utah, Vir-
ginia, Washington and "Wisconsin. Those statutes all have for thoir
object the prevention of a salo of his stock of goods in bulk by a
merchant, whether solvent or insolvent, without notice to his cred-
March, 1904.] Block & Griff v. Schwartz. 987
itors without first complying with various details mentioned in
such statutes. The constitutionality of such statutes has been at-
tacked upon the ground that they are class legislation, and amount
to a deprivation of property and liberty without due process of
law, and that they are not within a valid exercise of the police
power of the state.
Contrary to the conclusion reached in the principal case, statutes
providing that sales of merchandise in bulk, not made in the ordi-
nary course of trade and in the regular and usual prosecution of
the seller's business, shall be void, or presumed to be void, as against
Lis creditors, unless certain requirements for the information and
protection of creditors are complied with, so far as they have re-
ceived judicial interpretation and construction, have been declared
free from objection upon constitutional grounds. Such statutes were
expressly held to be valid and constitutional in Squire v. Teller, 185
Mass. 18, 69 N. E. 312; Neas v. Borches, 109 Tenn. 398, 97 Am. St.
Rep. 851, 71 S. W. 50. McDaniels v. Connelly Shoe Co., 30 Wash.
549, 94 Am. St. Kep. 889, 71 Pac. 37, 60 L. E. A. 947. In Hart v.
Eoney, 93 Md. 432, 49 Atl. 66'1. Such a statute was enforced as
valid, though its constitutionality was not expressly passed upon.
In Fisher v. llerrman, 118 Wis. 424, 95 N. W. 392, the court assumed
the validity of such a statute, although it expressly refused to pass
upon the question of its constitutionality because such question was
not presented to it either by oral argument or the briefs of counsel.
The cases cited above were called to the attention of the supreme
court of Utah and by it commented upon in deciding the principal
case. That court distinguished them from the principal case and
refused to follow them as controlling authoritv on the questions in-
volved, for two reasons: 1. Because the statute of Utah, unlike that
of either Massachusetts or Washington, failed to exempt from the
operation of its provisions persons acting in a fiduciary or official
capacity, or under judicial process; and 2. Because none of the
statutes of the other states, like that of Utah, made it a criminal
offense by both the buyer and seller of the stock of goods, to act
in making the sale and purchase in disobedience or disregard of
their provisions.
In a late case in Virginia (Young v. Commonwealth, 101 Va. S53,
45 S. E. 327) it was held in accord with the rule laid down in the
principal case, that the only authority which the state has to regu-
late or control the private business of a citizen grows out of its
police power, or power to enact laws pertaining to the public liealth,
the public safety or the public morals, and that a statute similar
in most respects to that involved in the principal case regulating
such private business in a manner which in no wise pertains to pub-
lic health, safety or morals is not a valid exercise of the police
power.
988 American State Eeports^ Vol. 101. [Utah,
LESTER V. HIGHLATs^D "ROY GOLD MINING COMPANY.
[27 Utah, 470, 76 Pac. 341.]
DAMAGES — Measure of for Destruction of Crops. — The meas-
iire of damages for injury to or the destruction of growing crops
is their value in th© condition they were in at the time of injury or
destruction, and not the market value at the time of their maturity
or during the market season, (p. 990.)
DAMAGES, UNLIQUIDATED— Interest.— In tort for un-
liquidated damages interest on the damoges recovered from the
time of the commencement of the action to the time of verdict, can-
not be assessed, (p. 991.)
Sutherland, Van Cott & Allison, for the appellants.
Henderson, Pierce, Critchlow & Banette and C. D. Vanan, for
the respondents.
^''^ BARTCH, J. This is an action to recover for dam-
ages to growing crops. The amended complaint herein was
filed April 16, 1903, and it was alleged, in substance, that
about June, 1899, the defendant company, having erected the
Highland Boy smelter, began operations, and thereafter, to
the commencement of this suit, reduced large quantities of cop-
per ores, and thereby caused to be emitted, from the smokestack
of the smelter, smoke, gases, and fumes charged with various
mineral substances, which were carried by the winds and de-
posited upon the farm of the plaintiffs, about a mile distant
from the smelter; that these substances were highly deleterious
to vegetable life; and that, as a consequence, the growing crops
and trees on said farm were damaged and destroyed. The an-
swer admitted tlie erection and operation of the smelter, but
denied the other material allegations of the complaint. From
the record and evidence it appears that the farm of the plain-
tiffs is situate from one-half to three-quarters of a mile north-
cast of the Highland Boy smelter, tlie west end of it being
directly north thereof; that about one and thrcc-fourtlis miles
south of the Highland Boy is situated the Bingliam Consoli-
dated smelter; that about one-quarter of a mile south of the
latter is the United States smelter; that the Bingham Consoli-
dated was in operation during the latter portion of the time
the plaintiffs sue for damages, that both the Bingham Con-
solidated and the United States smelters were in operation
since the commonecmcnt of this action ; that all tlie smelters
were operated for the purpose of reducing ores; that the wind
April, 1904.] Lester v. Highland Boy etc. Min. Co. 939
in that locality fluctuates, but that its general direction is
north and south; and that the damages sued for were oc-
casioned by the reduction of the ores, which created smoke,
dust, gases, and fumes, that were carried by the wind onto
the plaintiifs' farm and deposited on their crops and trees,
causing them to be injured and destroyed. At the trial, the
jury returned a verdict in favor of the plaintiffs for damages
in the sum of two thousand five hundred dollars, with inter-
est thereon, from the commencement *'^ of the action to the
date of the verdict, amounting to two hundred and fifty-nine
dollars and forty-four cents. Judgment was thereupon ren-
dered for the sum of two thousand seven hundred and fifty-
nine dollars and forty-four cents, with interest thereon at
eight per cent from date thereof. The defendants appealed.
From the theory upon which this case was tried by the de-
fense, it appears to be conceded that the plaintiffs are entitled
to some compensation for injuries to their crops and trees,
but the appellants insist that the court erred in its charge to
the jury respecting the measure of damages. That portion of
the charge objected to on this point reads as follows: "Tlie
plaintiffs in this case are entitled to recover only such damages
to their crops of lucerne, potatoes, oats, corn, beets, wheat,
and such things as are sued for, as they were worth at the time
when destroyed or injured, and at the place where injured or
destroyed. In other words, if they were injured or destroyed
at or before the time of harvest in the different years respec-
tively, then in arriving at the damages you must take the
market value of such products and crops not later than tlie
prices prevailing at the time of such harvest, or during the mar-
ket season.'' This instruction, considered as a whole, is clearly
erroneous. The rule stated in the first sentence has the sup-
port of authority, but, in attempting to explain it in the last
sentence, the court virtually set the rule aside, and misdirected
the jury l\v stating that, in arriving at the damages, they
must take the "market value of such products and crops not
later than the prices prevailing at the time of such harvest, or
during the market season." While, in cases of destruction of
growing crops, it is proper and important to introduce and
admit evidence showing the kind of crops the land is capable
of producing, the kind of crops destroyed, tlie average yield
per acre of each kind on the land in dispute, and on otlier
similar lands in the immediate neighborhood cultivated in like
manner, the stage of growth of the crops at the time of injury
990 American State Eeports^ Vol. 101. [Utah.
or destruction, the expenses of cultivating, harvesting, and
marketing the crops, and the market value at the time of ma-
turity, ^'^ or within a reasonable time after the injury or de-
struction of the crops, and while all such evidence may be
considered by the jury in determining the amount of dam-
ages, if any, still the true measure of compensation is the
value of the crops in the condition they were in at the time
of their injury or destruction, and not the market value at the
time of maturity or during the market season. "For destroying
or carrying away growing crops, the measure of compensation,'*
says Judge Sutherland, "is their value in the condition in
which they were at the time of the trespass" : 3 Sutherland
on Damages, sec. 1028. In 3 Sedgwick on Damages, section
937, the author says: "In estimating the value of the crop,
the prevailing rule seems to be to take its actual value at the
time of the trespass, not its probable value, assuming that it
would have matured." As to the rule stated in Smith v. Chi-
cago etc. E. E. Co., 38 Iowa, 518, that the measure of dam-
ages is the "difference between the market value of the crops
when ripe and tbeir value in an injured state, less the cost
of growing them," the author, in the same section, says : "This
rule, however, is objectionable, because it assumes, without
proof, that the crops would have come to maturity." In Texas
etc. E. E. Co. V. Young, CO Tex. 201, it was said: "The true
measure of damages was the value of the crops at the time
they were destroyed. In arriving at that, from the very nature
of the question, great liberality in making proof must be al-
lowed, and even the opinions of witnesses qualified by experi-
ence to speak upon the subject would be admissible : 1 Wbar-
ton on Evidence, 447, 448; 1 Greenl. 440, note. But at last
tbe question is What was the value of the property at the time
it was destroyed? That the value of the probable yield at
tlie time the crop would have matured and been gathered is
not the true measure is evident for at any stage in tlie growth
of a crop it requires labor to cultivate and gather it, more or
less, as tlie crop may be advanced, and tliese elements go into
the makeup of tb.e value at maturity. If tbe crop be destroyed
'*''* before maturity, tbe labor of tbe farmer is not further
directed to it, and he is free to embark in other profitable em-
ployment. To give the value of a matured and gathered crop
v/ould be to give compensation for labor never performed,
and for an injury received." The supreme court of Colorado,
in Colorado etc. Co. v. Hartman, 5 Colo. App. 150, 38 Pac.
April, 1904.] Lester v. Highland Boy etc. Min. Co. 991
62, held: "The measure of damages for the destruction of
{r rowing crops hy water from an irrigation ditch is the value
of the crops in the condition they were at the time of the in-
jury." So, in Lommeland v. St. Paul etc. Ry. Co., 35 Minn.
412, 29 N. W. 119, it was said: "In such cases the general
rule appears to be that the damages are to he estimated as of
the time of the injury, and the measure of damages is compen-
sation for the value of the crops in the condition they are in
at that time" : 3 Sutherland on Damages, sec. 1049 ; Gulf
etc. Ey. Co. v. Carter (Tex. Civ. App.), 25 S. W. 1023; Eich-
ardson v. Northrup, 66 Barb. 85; Handforth v. Maynard, 154
Mass. 414, 28 N". E. 348; Folsom v. Apple Eiver Log-Driving
Co., 41 Wis. 602; Seely v. Alden, 61 Pa. St. 302, 100 Am.
Dec. 642; Sabine etc. Ey. Co. v. Joachimi, 58 Tex. 456; Gres-
ham V. Taylor, 51 Ala. 505; Farr v. Griffith, 9 Utah, 416,
35 Pac. 506 ; North Point etc. Irr. Co. v. Utah etc. Canal Co.,
23 Utah, 199, 63 Pac. 812; 15 American Digest, Century ed..
sec. 281, col. 2013; Little Schuylldll Nav. Co. v. Eichards, 57
Pa. St. 142, 98 Am. Dec. 209.
The appellant also contends that the court erred in instruct-
ing the jury that they should allow interest on the damage.^
assessed by them in favor of the plaintiffs from the date of
the commencement of the action up to the date of the ver-
dict. This contention appears to be well taken. The action
was for a tort, and the damages were unliquidated, and this
court, in Nichols v. Union Pac. Ey. Co., 7 Utah, 510, 27 Pac.
693, which was an action for a tort, where the damages were
unliquidated, and where the jury returned a verdict for so
much damages, and so much for interest thereon, held "that
there is no authority for the granting of interest *'"'* in sucli
a case." Under the doctrine of that case the instruction re-
specting interest was erroneous. As a new trial must be granted
because of the errors already pointed ovit, we do not deem it
important to discuss and decide the other questions presented
herein, since the same questions may not again arise.
The judgment is reversed, with costs, and the cause re-
manded with instructions to the court below to grant a new
trial. It is so ordered.
Baskin, C. J., and McCarty, J., concur.
The Owner of Qrnwino Crops destroyed by the fault of another
may recover the value thereof: Froetnont etc. Ev. f'o. v. Marlov,
25 Neb. 138, 13 Am. St. Kep. 482, 40 N. W. 948. In Byrne v. Min-
992 American State Reports, Vol. 101. [Utah.
neapolis etc. Ey. Co., 38 Minn. 212, 8 Am. St. Eep. 668, ZG N. W.
339, it is held that the proper measure of damages for the destruc-
tion or loss of growing crops is in general the value of the crops
upon the ground, and not the loss as measured by the rental value
of the land: See, in this connection, Watt v. Nevada Cent. R. R.
Co., 23 Nev. 154, 62 Am. St. Eep. 772, 44 Pac. 423, 46 Pac. 52, 70.
CASES
IN THE
SUPREME COTTKT
OF
WASHINGTON.
CITY OF BALLARD v. WAY.
[34 Wash. 116, 74 Pac. 1067.]
JUDGMENTS — Presumption of Jurisdiction. — A recital of due
Kerviee of process in a judgment by a superior court raises a pre-
sumption of a valid service, and a person attempting to avoid such
judgment must show that no legal service was made. (])p. 99G, 997.)
TAX DEED — Street Assessment Lien — Superiority. — A pur-
chaser at a sale for general taxes acquires a title valid as against a
lien for a street assessment, (p. 997.)
j\I. E. Sheldon and J. B. Van Dyke, for the appellants.
H. E. Peck, for the respondent.
^^"^ ]\IOUNT, J. This action was commenced by the city
of Ballard in King county, to foreclose two liens against lot
12, block 15, of Oilman Park in said city, for street improve-
ments made in the year 1891, the lot being a corner lot facing
upon two streets. On a trial, judgment was entered in favor
of the city. Defendants appeal.
The facts in the case are undisputed, and are substantially
as follows: In the year 1891, the city of Ballard passed ordi-
nances providing for the improvement of the two streets facing
on the property above described, and also providing for assess-
ments of the property to pay therefor. The streets were there-
upon improved, but the assessments were declared void by the
courts. Subscqucnth^ in 1897, by virtue of an act of the legis-
lature of March 9, 1893, the city passed ordinances providing
for reassessments of this lot, to pay the costs of the improve-
ment, together with the penalty and interest thereon. The
Am. St. Rep., Vol. 101—63 (993)
99i Amekicax State Reports^ Vol. 101. [Wash.
liens created by these reassessments are the ones now sought
to be foreclosed.
At the time the improvements and assessments were made
tlie property was owned by the Woman's Home Association,
a domestic corporation, of Seattle. After the street improve-
ments were made, general taxes for state, county, and muni-
cipal purposes were levied against the lot for the years 1892
to 189G, inclusive. These taxes were permitted by the owner
to become delinquent. On October 2, 1900, Alexander Mc-
Donald purchased from the treasurer of King county a cer-
tificate of delinquency for the general taxes then delinquent
against the pro2:)crty in question, and, at the same time, paid
taxes due for the years 1897, 1898, 1899. Mr. McDonald af-
terward brought an ^*** action in the superior court of King
county against the "Woman's Home Association and all per-
sons unknown, if any, having or claiming an interest or estate
in and to the hereinafter described real property," to foreclose
his lien for taxes against the lot in question. Thereafter, on
the sixteenth day of April, 1901, the said court entered a
judgment which recites as follows : "This cause coming on for
trial this day, and it appearing to the satisfaction of the court
that the notice and summons in said cause was regularly and
duly served on the above-named defendants, as the law in such
cases requires, and more than sixty days have elapsed since
said service, and defendants have failed, neglected and refused
to appear and contest or make any apjicarance at all in said
action, it is therefore ordered."
The judgment then proceeds to fmd that the plaintiff therein
has a tax lien against the property, and ordered a sale thereof
to satisfy the same. The property was accordingly sold and
bid in by Mr. ^McDonald for the amount of his claim, and
ihereafter, on April 27, 1901, a deed was issued to him there-
for. On ]\ray 31, 1901, ]\[r. jMcDonald sold and conveyed the
jiroperty to tlie appeUant George Way. Subsequently j\[r. Way
also o1)tained a deed from the Woman's Home Association for
tlie property.
In the record of the case of ^IcDonald v. AVoman's Home
Association, there is no return of personal service, but there
is an attempted publication of summons, which appears to be
defective for several reasons. This service, however, is not re-
lied upon as giving the court jurisdiction in that case. Coun-
sel for appellants relies exclusively upon the finding of service
in the judgment above quoted. At the trial the validity of
Jan. 1904.] City of Ballaed v. Way. 995
this judgment was attacked upon the ground that the summons
had not been served, and respondent was permitted to call Mrs.
Ingraham as a witness. This witness testified that she was
secretary **^ of the Woman's Home Association from the year
1890 to 1895, and that no one was ever elected to succeed her;
tliat Mrs. Henry Furman was president of the corporation
during the years 1899, 1900, and 1901; that the corporation
was a local one, and that all the members and officers were at
all times residents of King county. She was not asked and
did not state that no personal service of the complaint in Mc-
Donald V. Woman's Home Association was had upon the as-
sociation.
It is not questioned here that the reassessment made by the
city in 1897 is regular, and that the improvements were made;
nor is it questioned that the sale, and all proceedings had un-
der the judgment in McDonald v. Woman's Home Association,
are regular and valid, provided the court had jurisdiction to
render the judgment. It will therefore be readily observed
that there are but two principal questions in the case: 1. Did
the court have jurisdiction to enter the judgment in the case
of McDonald v. The Woman's Home Association? 2. If so,
is the lien for general state, county, and municipal taxes para-
mount to the lien for street improvements?
1. It is apparently conceded that the record shows no legal
service by publication, and appellants do not contend that the
record outside of the judgment shows personal service by the
return of any officer or person authorized to make it. But
they contend that since the court is one of general jurisdiction
the finding in the decree "that the notice and summons in
said cause was regularly and duly served on the above-named
defendants, as the law in such cases requires," is conclusive,
and they rely wholly upon this finding. In the case of Munch
V. ]^IcLaren,' 9 Wasli. G7fi, 38 Pac. 205, this court said : "By
the filing of the complaint the court obtains jurisdiction of
the subject matter, and by the service of the ^'^ summons,
of the person of the defendant ; and every act not negatived by
the record will be presumed in aid of the judgment, and it
will only be held void when it affirmatively appears from the
record that the court had no jurisdiction to render it."
This case was followed in Eogcrs v. ]\rillcr, 13 Wash. 82,
52 Am. St. Rep. 20, 42 Pac. 525, where it was held that the
question of service of the summons was a question of fact for
the court trying the case to determine, and it was there said:
996 American State Eeports, Vol. 101. [Wash.
*'The finding of the court 'that service of the complaint and
notice had been duly made according to the law/ is not con-
tradicted by merely showing that a summons which was legally
insufficient had in fact been published."
To the same effect are the following cases from this court:
Belles V. Miller, 10 Wash. 259, 38 Pac. 1050; State v. Su-
perior Court, 14 Wash. 203, 44 Pac. 131: Christofferson v.
Pfennig, 16 Wash. 491, 48 Pac. 264; Kizer v. Caufield, 17
Wash. 417, 49 Pac. 1064; State v. Superior Court, 19 Wash.
128, 67 Am. St. Eep. 724, 52 Pac. 1013; Kalb v. German
Savings etc. Soc, 25 Wash. 353, 87 Am. St. Eep. 757, 65
Pac. 559; Peyton v. Peyton, 28 Wash. 278, 298, 68 Pac. 757;
Noerdlinger v. Huff, 31 Wash. 360, 72 Pac. 73. It is true,
as argued by respondent, that some very eminent authorities
have said that the "findings of jurisdiction may affirm, in
general terms, the service, or due service, of process, without
indicating that the attention of the court has been specially
called to the kind of service made, or that it has probai)ly
based its finding upon other evidence than that disclosed by
the record. In such cases it is not reasonable that the general
statement should prevail over the evidence contained in the
record. It should rather be construed as referring to and
founded upon it; and if the service shown by it is not such
as will support the judgment, it should be treated as ^'^^ void,
notwitlistanding the general statement in the judgment tliat
process has been duly served": 1 Freeman on Judgments, 4tli
ed., sec. 130, and authorities cited.
But this court early adopted the rule that the recital of
due service in tlie judgment. l)y domestic superior courts, raises
the presumption of a valid service, and that every ju-esuinj)-
tion must be indulged in favor thereof. Accordingly it was
held in Engers v. Miller, 13 Wash. 82, 52 Am. St. Eep. 20.
42 Pac. 525, that, where there was ample time for another
summons to have been issued and served, this court would, on
collateral attack, presume such fact in aid of the judgment ; and
in ChristofTcrson v. Pfennig, 16 Wash. 491, 48 Pac."2G4, where
an insiitlicioiit affidavit of publication ap})eared in the record, it
was held that we would presume, in aid of such judgment, that
other sufricicnt ailidavits were filed; and in State v. Superior
Court. 19 Wash. 128. 07 Am. St. Eep. 724, 52 Pac. 1013, where
the return of personal service was not verified as required, it
was said: ''The presumption must be that there was a valid ser-
Jan. 1904.] City of Ballard v. Way. 997
vice. This document might in fact have been sworn to in open
court before the judge at the time the judgment was taken."
We are satisfied with this rule, and are not disposed to change
or modify it now.
Conceding, without intending to decide, that the respondent
in this case was at liberty to attack the validity of the judgment
in McDonald v. Woman's Home Association, no evidence was
offered that the defendants in that case were not legally served
with process. The only evidence offered or introduced was to
the effect that the corporation was a domestic corporation, and
all the officers thereof were, at the time the action was begun,
residents of King county. The defendant. Woman's Home As-
sociation, was, therefore, required to be served personally. The
judgment shows upon its face that the defendants had ^^^ been
served as required by law. In order to avoid the judgment, it
devolved upon the respondent to show that no legal service was
made, and that the court had no jurisdiction. This was not
done. It follows, under the rule above stated, that the court
is presumed to have had jurisdiction, and that the judgment is
valid.
2. The question as to the priority of liens for general taxes
over street assessments has recently been so fully and carefully
considered by this court as to need no further discussion. In
McMillan v.^Tacoma^ 26 Wash. 358, 67 Pac. 68, we said: "It
must be held that the holder of a delinquent general tax cer-
tificate is not required to pay local street assessment liens before
he can proceed to foreclose and sell under his general tax lien.
He is entitled to a decree establishing his tax lien as paramount
and superior to all other liens or charges against the property":
See, also, Keene v. Seattle, 31 Wash. 202, 71 Pac. 7G9 ; State v.
McConnaughey, 31 Wash. 207, 71 Pac. 770. This being the
settled rule, it follows that, when McDonald foreclosed liis par-
amount lien and sold the property and became the purcliascr, he
acquired a valid title to the land, against which the respondent
cannot now foreclose an inferior lien. If the respondent has
any right at all at this time, as against the appellants, such right
is limited to a redemption: 1 Black on Judgments, 2d ed., sec.
418, and cases cited.
The judgment of the lower court must therefore be reversed,
and the action dismissed.
Fullerton, C. J., Hadley, Dunbar and Anders, JJ., concur.
998 Amkkican State TJkpouts, Vol. 101. [Wash.
Jf a Judgment of court of ponoral jurisdiction rocitos thut .sorvico
of summons was duly nuido, it must bo presumed, uccording to Kalb
V. Gorman 8av. etc. Soc, 25 WaHli. ;{4l), .S7 Am. 8t. iiej> 757, 05
Pac. 559, tliat that fact ai>po;ired to tho court by competent proof.
See, further, McIIatton v. Rhodes, 143 Cal. U75, ante, p. 125, 70 I'ac.
1036.
STATK V. CITY OF SOU'IMI rARIv.
i;i» Wash. 102, 75 Pac. (J.tO.)
QUO WARRANTO —Municipal Incorporation. Quo warranto
(Iocs not lie a^;;iinHt a muuicipal corporation to test tho validity of
the election uinlcr which it w;i.s iin'orporatcil. (p. 1)1)1). )
P. C. Ellswi.rili and J. E. l\1(:(in'W, for the ai)p('nant.
(iran;,f('r k Ilcifncr, for the rcspoiulriil.
*"•' I1A1)1;I']Y, J. Tliis is a proceed in t^^ in [lio nalure of (pio
warranto, tho j)iirpo.s(! of whieh, us staled in appdlaid's hri(d",
is to "test tho ineorjjoralion of resj)ondcid, and lo dricnnine
whether it is pro|)erly incorporated as a cily of the fnnrth class
innh'r the laws of Wash in^''! on." 'I'hc in I'ornial ion char;^M>s ir-
re<^Mdaritics as lo notice and ain(ai(hneid. of j)cti(ion for incorpo-
ration; also I hat illcL^al vot(!S wore <'aKt at \\n'. incorporal ion elec-
tion, and that votes were ilie^rnHy connled for incorporal ion.
'JMio answer denies these char<^es. At the trial tlie i-siies were
narrowed hy llie slalenient of relalor's counsel Ihal Ihey desireil
to present hut two «pie-tiniis of fact: 1. That len hallols were
wron^^fully counted hy the eleclion |io;ii'd in favor (d' incor|Hir;i-
tion; and 'Z. That lhre(,' ille;_';d voles vver<' ca.-t hy persons iinl
r(!si(leids of the territory sou^rht to he incorporated, ('ouiisel
ntated lo lh(! court that, when relator had eslahlished the ;ilio\e
facts, he would ask that the incorporation he dec|;ire(| void.
'J'hor(Mij»on lli(!cily inoved for jud;juient in its f;ivor, and U)v the
disrrus~al of the action. 'I'hc motion was ;.'i;iii ted, and judv-
inent entered accord in^^ly. This apjie;il is fi'oni l!i;d jud.'.Miicnl.
'J'his suit was hrou<^l)t a;^ainst th(i corporation in its cor[»or;ile
nanie. -No indi\idual is made a partv as assuming.'' '*'"' to il-
Icf^fally dischar^'o municipal functions. Section o7H0 of P,;il-
]in;/er's ("ode (;numerates the /.^rounds for whieh an informal ion
in th(! nature of (pio warranto may he filed. It, rnav he lileil
airainst "any per-on or corporation," hut ;ill the sulidi visions of
lli(! .^eetion rehite lo the u.-urpation of olhcial or coi-jKU'ate func-
Fob. 1001.] Statk r. City ov Soitm Tauk.
1)1)0
liiMis l>v imlivitluals, tnccpt tlu* llflh, whiih rclulrn !«> iwl.-i ou
the part of oorponUioiis hy whii'h Ihoy fmi'iMt (lunr piuilo^t't*.
or to tlu> (>\oriisi> of powers not coiiforrcil l»y law. In \\\o lal-
tor case (lu> inft>rmalion may l'«^ dins'lt**! ai;;aiiiril \\\o oorpitra
tion, l)iit il must rcio^iii/.o (hat llu> »'orporalioi> lian llioroloforit
had a U\nal (>\ist('Mt't».
All information cannot h(^ diroclo*! ti;^ainHt a corporation
which it char^'^cs (Kx'h luit o\\h\. In f^nch cahi* there in no cnlil\
in existence upon which nervicc can he maile, «m' which can phnul
to th(* infiM'tiiation. It in ilh);^iciil to nuo nn iinci>ci| ititillcuil
person for the purpose of ohtainin^ an iiiljiiilicalioii that (hei<<
is no such person. Mitlier there is (U' is not a coipoial loii. If
tliere is not, a corporal itui, it cannot he hiicil, The tiiiit, then,
must, lie ji}^Niinst th<^ persons who assume |o act iii a c(Uporate
<!ipncitv. Hy hrin;j;in;^' suit. a;.'aiiist t.lie ciuporalion appi<lhiiil
admits its exislenc<'. The iiifiu'iiinl imi. tlicrefore, docs not dliilc
faciei siilliciciit to connliliite a ciiiiin* of lulioii, mihh iI ;>iiMpl\
seeks an adjiidiral idn that tlicrc in iml nuw mid iirvcr wati iiiicli
a ci)r|ii)i'aiion.
In l''ei>'ii,^-(iii V. SiiolM.iiiish, H Wash <i(i;'., .'!(i I'm !i(l!l, V I I,,
I'. A. Tl'^t. the appi'llanl, Hoii;.dit td lemoM' iui nlli'.cid < luud \'n\
illi';.'al lasi'H on Ihe (.'round thai, lin' iily of MiiMhciini: h, vUih h
iliipo:i'd Ihe laxcM, iicv<'r had a li'.i'iij i-s |:|i'iii'r The allinlv
a;^•liMHt. I lie corporalc (■m;-I<'ii(c wa;i in (h.il nn-r a < ulLili i iil uiir
and tlii;'. ('Mill'!, in holdiii!' tliat, i-in || a iMllaliiiil alla>l' luiild
not he HUhlaiiicd, ah:r» f^uive a fiirthir |ia;oii lur il;i ili c H'luii a"
follows :
'*'•'' "I'ld, we si\f 'if till- opinion llial IIh- ;ippi lliinl i.; not in a
hi Illation to (pus- Il on I.Ik; validil y of l.lic ui'o) po/ al ion ol 1 1 i . il y
of Snolioniii-.li, for Ihe )i'a;'on that In- (i;i:-, I)MHi:'IiI In:', ailion
ajMiiiht, il, a;-, a municipal ri;ipoialion and all<;'i.| jl |o 1;' mc li
i;i hi;-: complaint I'.ul, I In- w lyhl, <,!' anllioiily iii.iy no?/
I;(; ri'f'ardcd a;- >.ii:-la ini n;' lie' piopo;-ilion Ihal llii-(||(i| .,| film:'
an iiifoiinal )o/i a-'.iin f, a 'oipoialion hy )!.■. 'oipo/al' nani' lo
pro'-iii-i; a foi r<')l II I (• </f il;-, 'haiti-r^ or to 'omj.'l il. to di.-'lo.'
\r,' what. ai)l..'i'<) it y it, c/ci't.-i ■■• )t;-, c/j/po/alc lian-lo.-i-, ;;• to a-l
;/iit the i:xr-l<ii' <■ '/f th'- < '/Jpoial jofi. V^'h< /i, ll/< ;< lo;i , l)i< in
forjnalion i^-. ^il'd a,''ain:i the ;< ;-p'y;/d< nt i/i j);-. ' ,;, |,,,, ./i, ,,;,m,.
and 1,1 <)<■'■>'■'. i'-. r.-;-iJ'-d and :-'-rv<-fj a"o;d)n;'!y and Mm
'>o/e!./-(
af>};':ai;-: and j/!'-ad;-, in the :-anje 'o; po/a!<- - i,a/ a- 1/ < ^ -'•■ 'o/j, ',/,.(.
t:Xr:^>:lt'': <-:UU'A, af'<-rv,a;d \,': ' '/;/I.J0V< ; )^ o<' Hi;'!,:- |,.'l(;,o/
'ijfja;v I/;';.; K'-i' ';'!;<■;-; VA ed , ;•<-/• (,(.] 'I i,- follow,/;/ 'a..;
';jr<r'i .u M;. \\.;'''i''>- valtjaM': v,o;/ a.' .■.,[.].•, !\.ihy i,h' :,•/>.■ //<
1000 American State Reports^ Vol. 101. [Wash.
have examined and find to be in point : People v. City of Spring
Valley, 129 111. 169, 21 N. E. 843; State v. Cincinnati Gas etc.
Co., 18 Ohio St. 262; State v. Commercial Bank etc., 33 Miss.
474; Rolling Stock Co. v. People, 147 111. 234, 35 N. E. 608,
24 L. R. A. 462 ; People v. Stanford, 77 Cal. 360, 18 Pac. 85,
19 Pac. 693, 2 L. R. A. 92. As being also directly in point see
the following cases: State v. Independent School Dist., 44 Iowa,
227; Mud Creek Draining Co. v. State, 43 Ind. 236; People v.
Rensselaer etc. R. Co., 15 Wend. 113, 30 Am. Dec. 33; State
V. Uridil, 37 Neb. 371, 55 N. W. 1072.
In People v. City of Spring Valley, 129 111. 169, 21 N. E. 843,
mention is made of the fact that some authorities seem to draw
a distinction between private and municipal corporations, hold-
ing that an information may be brought against a municipal
corporation by its corporate name, even where its corporate ex-
istence is challenged, the proceeding in such case being held to
be against the city as a corporation de facto ^^^ and not as a
corporation de jure. It was held, however, that no exception
to the general rule exists in the case of municipal corporations.
We are also unable to see any good reason in principle why such
exception should exist unless a statute shall so declare.
For the foregoing reasons, the court did not err in granting
the motion for judgment of dismissal. The judgment is af-
firmed.
Fullerton, C. J., and Anders, Mount, and Dunbar, JJ., concur.
Quo Warrnntn will lie, it has been held, to attack the validity of
the incorporation of a village: Kamp v. People, 141 111. 9, 33 Am.
Bt. Rep. 270, 30 N. E. 6S0; and see the note to People v. Eensslaer
etc. E. R. Co., 30 Am. Dec. 48, 49.
March, 1904.] State v. Glindemann. 1001
STATE V. GLIXDEMANN".
[34 WasTi. 221, 75 Pac. 800.]
CONSTITUTIONAL LAW— Incest.— A statute defining incest,
without including actual knowledge on the part of the defendant of
hia relation to the particeps criminis as a necessary element of guilt,
is not unconstitutional, (p. 1002.)
CRIMINAL LAW — Incest — Information — Scienter. — If a stat-
ute upon incest is silent as to any scienter, not using the words
"knowingly," "willfully," or the like in describing the offense, it
is not necessary to allege or prove that the defendant knew the re-
lationship existing between him and the particeps criminis. (p. 1002.)
CRIMINAL LAW — Incest — Defense of Insanity — Evidence. —
If the defense of insanity is set up to charge of incest, the exclusion
of the record of the appointment of a guardian for the defendant
as being of unsound mind is not error if the record of the actual
adjudication of his insanity, made just prior to the guardianship pro-
ceeding, has already been admitted in evidence, (p. 1003.)
CRIMINAL LAW — Incest — Insanity as Defense — Guardian-
ship of Wife — Evidence. — If a husband charged with incest sets up
insanity as a defense, the record of the adjudication of his insanity
and of the appointment of his wife as his guardian is not admissible
in evidence to show that she who instituted the prosecution for incest,
was in duty bound to look after his defense. Her attitude in the
matter can be better shown by other evidence, (p. 1004.)
TRIAL — Comment on Evidence. — It is reversible error for the
court, upon a dispute as to what a witness has testified to upon a
material point, to declare in the presence of the jury what such evi-
dence was, and that the stenographer's report thereof is wrong,
(p. 1005.)
P. C. Sliine, Townsend & Moore and W. F. Townsend, for
the appellant.
H. Kimball and M. Poindextcr, for the respondent.
^-^ HADLEY, J. Appellant was chariied with the crime of
incest committed with his own daughter. Having boon tried
and convicted, he has appealed to this court. He first assigns as
error that the court overruled his demurrer to the information.
The essential part of the information is as follows: '"That the
said defendant, John Glindemann, in the county of Spokane and
state of Washington, on or about the first day of January, 190'^^,
did willfully, unlawfully and feloniously have sexual commerce
with and carnally know one ^larie Glindemann, tlie said Mario
Glindemann then and there being a female and a daughter of
said John Glindemann, thereby committing the crime of in-
cest."
Incest is defined in sections 7228 and 7229 of Ballinger's Code
as follows : "Incest is the sexual commerce of persons related
1003 American State Eeports, Vol. 101. [Wash.
within the degrees wherein marriage is prohibited Per-
sons being within the degrees of consanguinity or affinity, within
wliich marriages are prohibited by law, who intermarry with
each other, or who commit fornication or adultery with each
otlier, or wlio carnally know each other, shall be deemed guilty of
the crime of incest."
It is urged that actual knowledge, on the part of the accused,
that the relationship is within the said degrees of consanguinity
is necessary in order to constitute the crime. ^'* It is insisted
that the criminal intent cannot exist without actual knowledge
of the relationship. Appellant contends that the statute de-
fining incest should include the element of knowledge on the
part of an accused, and that its failure so to do is in violation
of the fourteenth amendment to the constitution of the United
States, as an attempt to deprive one of liberty without due pro-
cess of law. But if the statute itself shall not, for that reason,
be held to be violative of the constitutional principle, it is urged
that, in any event, the information must go further tlian the
statute, and include the element of knowledge in its charging
part, liefore it can be held that it charges a crime. Appellant
cites State v. McGilvery, 20 Wash. 2-iO, 55 Pac. 115. as support-
ing the view that the information charging one with the crime
of incest must charge knowledge of the relationship on the part
of tlie defendant. What is said at page 250 is particularly re-
ferred to, as follows: "The third and last objection to the sufTi-
ciency of the information is that it does not allege that Carrie
Barnett had knowledge of the relationship existing between her-
self and the defendant. The information does allege that de-
fendant had knowledge of the relationship and this is sufhcient,
under our statute, without alleging that the female also had
that knowledge.'-'
It is true the inference may be drawn from the a])ove language
that the court in that case might have held that the allegation
of knowdedge was necossary, if it had been omitted as to the de-
fendant. However, the point raised here was really not de-
cided in tliat case. On this subject the following statement of
the rule appears in volume IG of x\merican and English Encv-
cloTtedia of Eaw, second edition, 138: ''Where the statutes are
silent as to any scienter, ns where they do not use the words
'knowingly,' 'willfully,' or the like in descrilting tlie oifense, it
will not \>e necessary to aHcge and prove aflinmitively that tlie
defendant knew tlie "^ relationship existing between him and
March, 1904.] State v. Glindemann. 1003
the particeps. While this is true, still it would seem, upon rea-
son, that the defendant's ignorance of such fact would constitute
a valid defense."
The crime here is charged substantially in the language of
the statute, and is sufficient within the rule above stated. See
the following cases in support of the rule, as applied particularly
to cases of incest: State v. Bullinger, 54 Mo. 142; Simon v.
State, 31 Tex. Cr. Eep. 186, 37 Am. St. Eep. 802, 20 S. W.
399, 716; State v. Wyman, 59 Vt. 527, 59 Am. Rep. 753, 8
Atl. 900; State v. Dana, 59 Vt. 614, 10 Atl. 727.
It was held by the United States district court, district of
Washington, in In re Nelson, 69 Fed. 712, that a statute of
Washington territory, similar to the present state statute, was
not invalid because of the omission of the word "knowingly,"
or any equivalent word or phrase, to make knowledge of the
relationship an element of the crime. Under the above au-
thorities, we hold here that the court did not err in overruling
the demurrer to the information.
It is next assigned that the court erred in excluding evidence.
offered by appellant, that the wife of appellant had been, and
then was, the duly appointed, qualified and acting guardian of
appellant. Appellant not only denied the commission of the
alleged crime, but also interposed the defense of insanity. A
record was introduced to the effect that he was adjudged to be
insane by a California court in the year 1898, and also another
record showing that he was, in September, 1902, adjudged, by
the superior court of Spokane county, to be then insane. Fol-
lowing the last adjudication, the said superior court appointed
Anna Glindemann, the wife of appellant, as his guardian, on the
ground that appellant was of unsound mind. It was the record
of said appointment that appellants sought to introduce in evi-
dence. It is argued that the fact that appellant --** was still
under guardianship tended to support the presumption of men-
tal disability. We believe, however, that it could have been no
more than cumulative evidence in this case, and that it was not
reversible error to exclude it. The record of the actual ad-
judication of his insanity, made just prior to the guardianship
proceeding, was in evidence, and the guardianship record was
valuable only for the same purpose for which the insanity record
was introduced.
It is further urged that the record was competent as bearing
upon the contention that appellant's wife is prejudiced against
100-i American State Reports, Vol. 101. [Wash.
him in this prosecution. It is argued tliat, whereas it was her
duty as guardian to see that aj)pellant was defended in this ac-
tion, yet she, in fact, was the instigator of the prosecution. We
think the real spirit of tlie wife's attitude toward the husband
can be better shown by other evidence than by this offered rec-
ord. It was therefore not error to exclude it when offered for
that purpose.
It is next assigned that the court erred in disputing the state-
ments of counsel and the sliorthand report of two stenograpliers
as to what a certain answer of the prosecuting witness liad l)een,
in stating what he believed her answer to have been, in striking
out the former answer of the witness, and in permitting her to
adopt the court's version of what her answer had been, all in
the presence of the jury. This assignment, we believe, in-
volves error. We are compelled to set forth here a portion of
this record, which we would fain omit. But we see no other way
to make clear the point raised under this assignment of error.
The following is the portion of the record to which we refer:
"Q. "What did you mean by saying in cross-examination that
you supposed the reason you did not become pregnant was be-
cause he did not reach your private parts? A. I don't under-
stand. Q. I understood you to say that the reason you did not
Itccome pregnant was tliat your fatlier's private sexual organ
did not reacli up to your private parts? ''^"^ The Court: She
did not say tliat. Q. Just explain what do you mean by that?
Mr. Townscnd : Objeeted to. (Objection sustained.) Q. Ex-
pUiin what you meant by the answer that the reason you suj>-
posed vou did not become witli chihl was tliat it did not roacli up
to your ])rivates? A. What he passed away. Q. What he
passed away did not reach up to your womb, is that what you
mean? ]\Ir. Townsrmd : Objected to. The Court: She did not
sav that. I don't think tlie witi^css said that. [Here the for-
TiKT question from the cross-e;.amination of this witness and
luT answer was read by the steno,irra])hers for the state and
for the dcfeiuhint, as follows: Q. Why? A. Because it did not
come up to my jirivates.J The Court: The stenographers are
wrong. She said the reason was because it did not reach up
far cnougli. (^. I will ask yott if that is what you said in an-
swer to that question? A. 1 think I did. Mr. Poindcxter: I
move to .-trike r.ut that former answer. The Court: The motion
is granted. Mr. Townsend : Exception."
March, 1904.] . State v. Glindemann. 1005
It seems to us that the above extract from the record is largely
self-explanatory. Owing to the peculiar nature of the crime
charged, it will be seen that the testimony over which the con-
troversy arose was very important. As counsel for both the
state and the defense, as well as both stenographers, seem to
have understood it, the argument miglit well have been made to
the jury that actual penetration was wanting, and that the crime
of incest was therefore not committed. We think the remarks
of the learned judge were direct comments upon material testi-
mony in the presence of the jury. It was for the jury to say
what the witness had testified, and it was appellant's constitu-
tional right that the court should not express an opinion before
the jury upon evidence of such vital importance to his defense.
Moreover, the record discloses that the court's remarks, together
with counsel's subsequent question, amounted to suggestions to
the witness which she readily followed. The well-known ten-
dency of jurors to give much ^^* weight to the court's views
of the testimony, if they are able to discover what those views
are. we think made the remarks of the court prejudicial to ap-
pellant's constitutional rights.
We see no essential distinction between the principle involved
here and that which was discussed in State v. Priest, 32 Wash.
7-1:, 72 Pac. 1024. Counsel argue that there is a distinction, in
that tlie court's remarks in tlie above case were directed to the
jury, while in the case at bar they were directed to counsel.
They were, however, made in the presence and hearing of the
jury, and in practical effect this case, we believe, should not be
distinguished from the one cited. We think the matters dis-
cussed under this assignment were so material that they con-
stitute reversible error.
For the foregoing reasons, the judgment is reversed, and the
cause is remanded with instructions to the lower court to grant
the motion for a new trial.
Mount, Anders, and Dunbar, J.J., concur.
//( nn Indictment for' Incest, it is not necessary, unless required by
statute, to allefre knowledge of the relationship on the part of the
defendant: State v. Wyman, 59 Vt. 527, 59 Am. Eep. 753. It is
otherwise, however, w'here the statute provides that "parties havinjr
knowledge of their relationship shall be guilty": Baumer v. State.
49 Tnd. 544, 19 Am. Kep. 091. In State v. Ellis, 74 Mo. 385, 41 Am.
Kep. 321, it is held that where one party has knowledge of the rela-
tionship and the other has not, the former may be convicted and the
latter acquitted. In a prosecution for rape, it is no defense that the
1006 American State Reports, Vol. 101. [Wash.
accused believed the prosecutrix to be over the age of consent: Smith
V. State, 44 Tex. Cr. Rep. 137, 100 Am. St. Eep. 849, 68 S. W. 995.
Insanity as a Defense to Crime is discussed in the monographic
notes to Knights v. State, 76 Am. St. Eep. 83-97; People v. Hubert,
63 Am. St. Eep. 100-108. And see the recent cases of State v. Keerl,
29 Mont. 508, ante, p. 579, 75 Pac. 362; State v, Clark, 34 Wash. 485,
post, p. 1006, 76 Pac. 98.
STATE V. CLAEK.
[34 Wash. 485, 76 Pac. 98.]
JTTROES — Examination as to General Qualifications — Waiver.
In a criminal prosecution it is not error to fail to require the prose-
cuting attorney to examine the jurors as to their general qualifica-
tions. Either the prosecutor or the defendant may waive his right
to so examine the jurors, or waive any disqualification in any juror,
(p. 1010.)
CEIMINAL LAW — Instructions Defining Degrees of Murder. —
On a prosecution for murder, it is not error to repeat instructions de-
fining murder in the first and second degrees, on the ground tliat they
tend to intensify the crime as murder, when the only purpose or
effect of such instructions is to more fully point out the distinction
between the different degrees of murder, (p. 1011.)
CEIMINAIj LAW— Insanity as Defense.— The Burden of Prov-
ing insanity as a defense to crime is upon the defendant, who must
establish it by a preponderance of the evidence, (p. 1015.)
CRIMINAL LAW — Insanity as Defense — Instructions. — If in-
sanity is set up as a defense to murder, it is not error to instruct the
jury to convict if satisfied beyond a reasonable doubt that the ac-
cused committed the crime as charged, if other instructions fully and
fairly inform the jury upon the defense of insanity, (p. 1015.)
TRIAL — Instructions. — It is not error to refuse to give re-
quested instructions already covered by instructions given, (p. 1015.)
CEIMINAL LAW — Murder —Sufficiency of Evidence.— A con-
viction of murder in the first degree must stand, when the circum-
Btances show that there can be no possible doubt that the defendant
did the killing through jealousy, although no one saw it done, and
when there is no evidence of his insanity, set up as a defense, except
his own statement that he did not know what he was doing at the
time, and the statement of witnesses that he "looked wild" and
"acted nutty." (pp. 1015, 1016.)
Israel & Mackay, for the appellant.
F. C. Owings, for the respondent.
"^^^ MOUXT, J. Appelhint was convicted of the crime of
mnrder in the first degree, and sentenced to death. From this
judgment he appeals.
April, 1904.] State v. Clakk. 1007
The facts are briefly as follows: On January 20, 1903, the
appellant, Charles Clark, and Leila Page were li\ing together
in a house of prostitution in the city of Olympia. Leila Page
was the mistress of the house. They had been so living for
about a year. On the date named appellant and Leila Page, at
about 4:30 o'clock in the morning, retired to their bedroom.
They had both been drinking and she was sick. During the day
and night of the 19th of January, they had been quarreling on
account of the intimacy existing between Leila Page and one
Xate Kirkendall. Appellant had threatened her life. Soon
after they retired to their room, Leila Page requested Cleo
Eeynolds, an inmate of the house occupying the next room, to
order a lunch for her. The lunch was ordered over the tele-
phone to be brought from a nearby restaurant to the room oc-
cupied by appellant and Leila Page. When the waiter brought
the lunch on a tray, Leila Page was lying on the bed with her
face from the door and with all her clothes on, apparently asleep,
breathing heavih'. Appellant was standing in the middle of the
room with his coat, vest and hat off. He took the tray and
placed it on the floor and said to the waiter that he had no
money. He called to Cleo Reynolds, and asked her to pay for
the luncheon. The waiter thereupon left the room, and the
door was bolted after him from within. Cleo Eeynolds paid
for the luncheon, and the waiter went away. Cleo Reynolds
went back to her room and soon fell asleep. She heard nothing
more until about 8 :30 o'clock in the morning, when she was
awakened by the appellant calling her in a muffled voice. She
^** thereupon got up and went to the door of the room occupied
by the appellant and Leila Page, but the door was fastened and
she could not get in. She could hear appellant speaking her
name. She thereupon asked him to open the door. After a
short time appellant succeeded in unbolting the door, which
was opened, and appellant fell across the open doorway, strik-
ing his head against the door jamb. His hands and face and
clothes were covered with blood. He was apparently uncon-
scious. He was dressed as above stated. Leila Page was lying
on the bed. dead. All her clothes were on, as above described.
Her forehead had been crushed, as with the back of an ax. and
a long gash was cut across her throat from about the center of
the neck to the ri^fht ear. Appellant had several cuts in liis
neck and throat and on his head. His mouth was burnt as if
with carbolic acid. There was no evidence in the room of any
strufTEfie. An ax, a small penknife covered with blood, and a
1008 American State KEroRTs, Vol. 101. [Wash.
small bottle containing carl)olic acid were found in the room.
A carving knife was also found under the cover of a settee. Be-
fore appellant was taken from the scene he was told by a police-
man that he was going to die, and was asked who did the kill-
ing. He at first said he did not know. Upon being asked if
he was sure, "said he thought Nate did it.^' Appellant was
thereupon taken to a hospital, and soon recovered from the ef-
fects of his wounds. In June, 1903, he was put upon trial un-
der an information charging him with murder in the first de-
gree. His defense was insanity. His version of the affair is as
follows, quoting from the record :
"Q. Xow, I will direct your attention to the night before she
died — Sunday night — and I will ask you to start from that point
and detail everything that you did, as you remember it, in con-
nection with Leila Page, or ^^^ regarding her, and everything
tliat was done that ^ night, and the next day, describing your
conditions and feelings during that time. Just tell the jury
all about it. A. Well, Sunday night I went down to the hou.se
about midnight and she was not there. The girls said she was
over to the 'Star.' Q. What did you do? A. I went to bed
and went to sloop, and she came in some time in the morning, I
think, along a])out 3 or 4 o'clock. I do not know just what time.
She said something — I don't know what she said. And then
she put on lior clothes and went out, and I don't know whore slio
was going or where she went. Then I went back to sloop. Tlie
next morning I got up about noon. She was not in bed, and I
looked in the other rooms and she was not there, and I askod
Cleo if she had seen her and she said, no. I went down to the
wine closet and got a drink of brandy and went to eating my
breakfast and wont up town. I went to Frank Dickorson's
saloon — I was working there — and I askod Frank if ho had soon
her and ho said be had not. The night 1)ofore I askod liim — I
opened up the games we wore working at and went to work. I
tliought I would wait until evening, but I could not wait. T
frit pretty nervous and wont out to the Ijar and got a drink of
brandy. Tlion T tliouglit that Xate roomed at the Union block
and she miglit l)Oup there. T asked the l)ut('hor if he had soon
her that morning and he said tluit he had, that she liad l)oon
tlicro and wont on \ip toward Swantown. I walked over as far
as tbo T'nion block and llion T walked up and down in front of
the Union block a few times. I thought I must be mistak(>n and
went back to tbo house. T wont back to the liouse and thov said
she liad been there and ijone out again. I wont l)ack. I don't
April, 1904.] State v. Clauk. 1009
know how many times I made the trip. It seemed like a dream.
J. couldn't get any information. I finally went to the Union
block, but I don't remember going to the Union block twice. I
remember going to Mrs. Hubbard's and finally Mr. Wentz came
in with the tray in the room where she was, Cecil Knight's room,
and she was lying there on the bed; and I tried to rouse her
and told her to get up, and I had her by the shoulder and she
hit my '*®^ hand and my finger nail scratched her neck ; I don't
remember what was done or what was said either, but we went
home together. She told me she had been at the Union block
the night before with Nate Kirkendall. I asked her if she in-
tended to leave me and she said she didn't. Then we embraced
and I kissed her several times and I went downstairs and she
went downstairs and left the house. She went over to the 'Star'
— I guess it is the 'Wigwam' now. And I went over and asked
if she was there and they said she was not. I went back to
the house again and telephoned over after a little while and
they said she was not there. I sent Cleo out to look for her
and she came back and said she was over there and wanted me
to come over for her. I was not drunk then and hadn't ])een
drinking any time during tlie day. I have been drunk and I
know what the feeling is. I don't say that the statements made
by the witnesses is not so, aren't true and didn't happen. If
they did happen I liave no recollection of it. We went upstairs
to go to bed. She told Cleo to order some luncli; I remember
that quite well. I went into the room — I didn't know where
she was at that time — and I started to undress myself. I don't
remember the boy bringing the tray in or who let him in — I
don't remember anything of that. Then again I was lying in
the hall, and then again I was being carried out, and then again
some one poking something down my throat, and then again I
came to and found myself lying in a strange bed just like a
[lerson would wake up out of a dream."
This is tb.e substance of the evidence on the part of the de-
fense. Otlier facts necessary to an understanding of the points
])resentcd will be stated hereafter. Appellant insists, first, tliat
tJie court erred in not re(|uiring the attorney for the state to
examine the jurors as to their general (pialification. It a])pears
that the individual jurors were examined first by the pr<isocutor
for actual and implied bias, and passed for caus(^; that there-
upon thoy were examined by counsel for ap])ollant. After the
state had "*"-i exercised all its peremptorv challenges, and the
appellant all of his ]M>reniprory challenges but one, and had
Am. St. Rop., Vol. 101— 6i
lUlO Ameuicax State liErouxs, Vol. 101. [Wash.
waived that one, appellant ohjected to the whole panel upon the
ground that the prosecutor had not examined the jurors as to
tlieir general qualification. This objection was overruled by
tho court. Counsel argues that, because the statute provides
that no person is competent to act as a juror unless he is (1) an
elector of the state; (2) a male inliabitant of the county for the
year next preceding the time he is called; (3) over twenty-one
years of age; (4) in possession of all his faculties and of sound
mind; (5) able to read and ^vrite the Englisli language; and
(G) has never been convicted of a felony (Pierce's Code, sec.
5939) ; and because it is provided that "the jurors having been
examined as to their qualification, first by the plaintiif and then
by the defendant, and passed for cause'' (Pierce's Code, sec,
601), it is therefore the duty of the prosecutor to examine the
jurors as to their general qualifications. While it is true that
persons, not possessed of the qualifications named in section
5939, supra, are incompetent under the statute, it docs not fol-
low that the prosecutor may not waive his right to examine the
jurors, and also waive the disqualifications named. The stat-
ute relating to the examination is simply declaratory of the
rights of the plaintiff and of the defendant. Either may waive
his right to qualify or disqualify the jurors. That this is true
is manifest because of the provision of the next section, which
is as folloAvs: "P)ut no act of a grand or petit jury shall be in-
valid by reason of such person or persons aforesaid, qualified in
other respects, serving thereon; nor shall any disqualification of
any member of a grand or petit jury affect the indictment or
verdict, unless the juror for that specific cause was challenged
or excej)ted to before the '*^^ finding of the indictment or rendi-
tion of the verdict, and the challenge or exception overruled, and
cnror specifically assigned": Pierce's Code, sec. 59 10.
In this case the appellant was not denied the right to examine"
the jurors as to their general qualifications. lie had the op-
]>ortuuity, and failed or refused to exercise it. He simply in-
sisted that the ]»rosecutoi should make the examination. It
does nnt a])pear here that any of the jurors were iu fact in-
cnmiictcnt or disrjualified under the statute. But, even if it
did so apficar, ajipellant, \inder the provisions of section 5910,
suj)ra. could not take advantage of ihat fact unless the juror was
challenged for the specific cause, the challenge overruled, and
an exception taken. It was, therefore, not error for the court
to deny the appellant's request.
April, 1904.] State t'. Clark. 1011
Appellant next insists that the court erred in repeating the
instructions defining murder in the first and second degrees,
hecause by so doing the court intensified the crime as heing mur-
der. We think no such result could be inferred. Both plaintiff
and defendant prepared instructions in the case, and requested
the court to give the same. After reading those prepared by the
prosecution, which fairly covered the case, the court gave several
instructions requested by the defendant, among which were two
paragraphs defining murder in the first and second degrees,
which clearly and more fully pointed out the distinction be-
tween those two degrees of murder than the definitions already
given. While it would not have been error to have refused
these instructions, they were given by the court, no doubt, for
the purpose of pointing out to the jury more clearly the distinc-
tion between these two degrees of murder, so that the jury might
not be confused therein. This was manifestly the object of the
court, and we are clearly of the opinion that the *^^ jury could
not have been led to believe therefrom that the court intended
to. or did, convey to the minds of the jurors his idea of the case.
There was, therefore, no error in this.
iVppellant next insists that the court erred in refusing to
give to the jury the following instruction : "It is not necessary
in order to sustain the plea of insanity that the fact of insanity
be established by a preponderance of the evidence; but if, upon
the whole evidence, the jury entertain a reasonable doubt as to
sanity they must acquit" ; and in giving an instruction upon the
question as follows : "You are instructed that every man is pre-
sumed to be sane and to intend the natural and usual conse-
quences of his own acts. As the law presumes a man to bo
sane until the contrary is shown, I charge you that the burden
of proving insanity as a defense to a crime is upon the defend-
ant to establish by a preponderance of the evidence, and unless
insanity is established by a fair preponderance of the evidence
the presumption of sanity must prevail."
This raises the principal question in the case and the odo
upon which the appellant apparently relies. Able counsel upon
both sides have exhaustively treated the subject in their briefs,
and brought to our attention adjudicated cases from nearlv all
of the states of the Union, and from the supreme court of the
United States. The rule contended for by the appellant is sus-
tained by the supreme court of the United States, and by the
highest courts of the following states: Florida, Illinois, Indiana,
Kansas, Michigan, Mississippi, Xebraska, New Ilamnsliirc, New
1013 American State Reports, Vol. 101. [Wash.
York, Tennessee, Vermont and Wisconsin — in the latest eases
cited, as follows: Davis v. United States, IGO U. S. 4G9, 16 Sup.
Ct. Rep. 353, 40 L. ed. 499; Armstrong v. State, 30 Fla. 170,
11 South. 618, 17 L. R. A. 484; Jamison v. People, 145 111. 357,
34 N. E. 486; •*->4 Flake v. State, 121 Tnd. 433, 16 Am. St. Rep.
408, 23 X. E. 273; State v. Xixnn. 32 Kan. 205, 4 Rac. 159;
Reople V. Finley. 38 :\rich. 482; Yovi} v. State. 73 ^Miss. 734.
19 South. 665, 35 L. R. A. 117; Furst v. State, 31 Xeb. 403,
47 X. W. 1116; State v. Jones. 50 X. H. 369, 9 Am. Rep. 242;
Moett V. People. 85 X. Y. 373; King v. State. 91 Tenn. 617. 20
S. W. 169; Revoir v. State, 82 Wis. 295, 52 X. W. 84; while the
liighest courts of the following states maintain the rule that,
where insanity is set up as a defense in a criminal case, it must
he established hy a preponderance of the evidence: Alabama,
Arkansas. California, Connecticut. Delaware, Georgia. Idaho,
Iowa, Kentucky. ]\Iaine, ^Vlassachusf^tts, ^Minnesota, ^Missouri.
Xevada, Xew ]\rexico, Xew Jersey, Ohio, Pennsylvania, South
Carolina. Texas, Utah, Virginia, and West Virginia — in the
eases cited as follows: Parsons v. State, 81 Ala. 577. ()() Am. Rej).
193, 2 South. 854; ^IcKenzie v. State. 26 Ark. 33 1; People v.
Tlettick, 126 Cal. 425. 58 Pac. 918; State v. llovt. -Hi ('(mn.
330; State v. Cole, 2 Penne. (Del.) 3! 1. -15 Atl. 31)1 ; Rvder v.
State, 100 Ca. 528, 62 Am. St. Rep. 3:51. 28 S. K. 2 16. 38 L.
R. A. 721 ; State v. Parkins. 5 Idalio. 200. 47 Pac 915; State
V. Trout. 74 Iowa, 5 15, 7 Am. St. Re]!. -199. :5S \. W. 405;
^loore V. Coimiinnweallli. 92 Kv. 630, IS S. W. 83:); State v.
I'arks. 93 Mr. 2i)s. U Atl. 8'.»9 ; ( 'oiip.nonwcalt!! v. Hddy, 7
Crav. 5s:;; Siatc v. Civar. 29 "Minn. 221. 13 X. W. 1 H); State
v. r.cll. i:!(; Mo. P3i). c: S. W. 8-i;5: S-.ale v. Lewis, 20 Nov. 33:!.
22 I'ac. 211 : (iraxcs v. Slate. 15 X. J. P. :5I7, 16 Am. Rep. 778;
l\clcli v. Stale. 55 Ohio St. 1 H!. 60 Am. St. Re]». 6S0. 15 X. I-:.
(i. :!9 P. U. A. 7:!7; Cominoir.vealt 'i v. W(K)(llcy, 16(; Pa. St. H;:'..
;!1 Atl. 202; State v. Alexander. 30 S. C. 74, M Am. St. IJep.
S7'.i. 8 S. E. IKt; Carlisle v. Stat(> (Tex. Cr. *•*'' A])]k). 5(1 S.
W. 365; People v. Dillon, 8 Ptah. i)2, 30 Pac. 150; Dejarnelte
V. Coiiiiiionwea'tb. ::, \'a. 8(i7 ; State v. Welch, ;](i W. \'a. (i!)().
15 S. !•]. 419. Tlu^ rul(> in I-lngland is followed bv ihe la-t
named class of -talcs. In tlu^ s'atcs of Oregon and Pouisiana
1li(^ defendaiii i- reijuircil liv >lalute to jirove insanitv beyond a
rea>onable doubt. 'I'he (|iio>iion presented here was before the
sni>renie court of the terriioi-y in MeAlli>ler v. Territory. 1
^\'a^b. Ter. :!<;(>. Tlie eoni-i iliert." said: •"The rule of law as to
the bunlen of iiroof in criminal ca-es we all airree is this: The
April, 1904.] State v. Clark. 1013
burden is on the territory to make out every material allegation
in the indictment beyond all reasonable doubt. The learned
judge who tried the case in the district court repeatedly, in the
instructions given on his own motion, and in those asked on the
part of the defendant, told the jury that such was the rule of
law. The force and effect of this rule cannot be destroyed by
any action of the prosecuting officer so far as the facts constitut-
ing the res gestae are concerned. Part of the facts included in
the res gestae may be developed by the territory, and part by
the defense, but still the rule is the same. The defendant is
entitled to the instruction that the jury must be satisfied of his
guilt beyond all reasonable doubt on all the facts so put in evi-
dence, and so the jury were told, except as shown above. And
we are satisfied that so far as the facts attending the killing are
concerned — at least so far as these facts are included in the res
gestae, that the burden of proof never shifts. This is as true
of the defense of insanity under the limitations stated above, as
of any other defense. But if insanity is set up as a separate
and distinct defense, and its proof does not consist of the facts
attending the killing, then the proof must be made out by the
defendant, the legal presumption of sanity being sufficient for
the indictment in the absence of evidence to the contrary."
This case is claimed by the appellant as an authority in his
favor. It is also claimed by the respondent as an authority in
favor of the state. The opinion is to the ^^*^ effect that when
the proof of insanity is made as a part of the res gestae, the
burden of proving insanity is not upon the state; but where the
proof does not consist of facts attending the killing, then the
burden of proving insanity is upon the defendant. It will be
readily soon, therefore, why each side of this controversy claims
tlie case as an authority in its favor. But it is difficult to in;-
agine a case where the slayer is insane and where the proof of
insanity is not a part of tlie res gestae, but is independent of
ilie facts attending the killing. The court, however, in tliat
case sustained the conviction upon an instruction substantially
as in this case, because it was hold that the facts did not warrant
any instruction upon the question of insanity, observing: ^'Tlie
world has had quite enough of that kind of insanity which com-
mences just as the sight of a slayer ranging along the barrel of
a pistol, marks a vital spot on the body of the victim, and ends
as soon as the bullet has sped on its fatal mission."
It Avill bo soon, by an examination of the authorities herein-
before cited, that the cases in the different states are in ir-
1014 American State Eeports, Vol. 101. [Wash.
reconcilable conflict as to the quantum of proof upon the ques-
tion of insanity. All, however, concede that the presumption of
sanity prevails, and that there must be some evidence to remove
this presumption. In the first class of cases, it is held that,
where the evidence raises a reasonable doubt as to the sanity of
the defendant, he must be acquitted ; in the other, that a reason-
able doubt is not sufficient, but the defendant must estaVjlish in-
sanity by a preponderance of the evidence. In the first class
named, the reason for the rule is that the presumption of in-
nocence always attends an accused person, and that the burden
of proving all the elements of the offense rests upon the state
and never shifts ; that, when the defendant's sanity is put ^^"^ in
issue, the state must prove it beyond a reasonable doubt, be-
cause, without a mind capable of crime, there can be no crime
committed; and, therefore, if the jury entertain a reasonable
doubt as to the sanity of the accused, it follows that they are in
doubt as to his guilt.
The reason for the rule adopted in the other class of states
is that sanity is the natural condition of man, and therefore
every man is presumed sane until the contrary is made to ap-
pear; that, when the commission of a crime is admitted or clearly
proven, and insanity is alleged as a defense, it, being an inde-
pendent affirmative defense and opposed to the natural and usual
order of things, must be established by a preponderance of the
evidence. Another reason given is that the presumption of
sanity is necessary for the well-being, safety, and protection of
society, and for the administration of justice, and neutralizes the
presumption of innocence upon which the rule of reasonable
doubt rests, and therefore leaves tlie accused, when asserting
his insanity, to show the fact by a preponderance of t1ie evi-
dence. Another reason for tbe rule is that it is the only safe
rule for society, while it is also just to the accused.
The distinction between the quantum of proof necessary to
raise a reasonable doul)t and that neccssaiy to constitute a fair
preponderance of the evidence is more fanciful than real. Wlien
evidence is sufficient to raise a reasonable doubt, as sueli doubt is
usually defined and understood, it may also be said in a sense
to preponderate. The distinction, therefore, while it may be
fruitful of philosophical and theoretical discussion, is of little
practical value. Insanity, when it exists as a fact, is easily and
readily proved. 'Wlien it does not exist in fact, it is easily
feigned and difficult to disprove. For this latter reason it is the
usual '^^^ defense when there is no other. It is no iniustice to
April, 1904.] State v. Clark. 1015
a defendant to presume that he is sane, and to require him to
prove the unnatural condition of mind, which he alleges as a
defense for a crime admitted, and to relieve him from a penalty
justly due to men in their natural condition. Notwithstanding
the weighty reasons advanced by the learned courts in the class
first named, we desire to adopt the rule laid down by the trial
court in this case.
Appellant assigns error upon the instruction of the court given
as follows: "If you find beyond a reasonable doubt that the de-
fendant committed the crime as charged in the information,
then I charge you that it is your duty to render a verdict of
murder in the first degree" — upon the ground that tbe instruc-
tion eliminated the defense interposed. If this instruction is to
be read as standing alone, it would be subject to the criticism
offered. But all of the instructions must be read together, and,
when so read, it was not error, because the court fully and fairly
instructed the jury upon the defenses interposed by the defend-
ant. This instruction simply told the jury that the informa-
tion charged murder in the first degree, which was correct.
Other instructions requested by the appellant — defining the
duty of the jury, reasonable doubt, circumstantial evidence, and
the degree of insanity necessary to acquit — were refused by the
court. These questions were all fully and correctly covered and
explained to the jury by other instructions which were given;
for that reason it was not necessary to give tlie instructions re-
quested, even though they stated correct principles of law. A
further discussion of them is not necessary.
Appellant's last assignment is that the court erred in refusing
to grant a new trial by reason of the insufficiency "^^^ of the evi-
dence to justify the verdict. We have carefully examined all
the evidence in tbe case, and, while it is true that no one saw
the killing or had an opportunity to see it, except the defend-
ant, the circumstances surrounding tbe killing are so conclusive
that there can be no possible doubt that the defendant did it;
that he had prepared for it by taking an ax into the room some
time before the deed was done; and tliat, while Leila Page was
asleep or in a drunken stupor, he crushed her skull witli tlio ax
and then cut her throat; that he then, with the small penknife —
probably the same one used on her — and a swallow of carbolic
acid, attempted to take bis own life; and thereupon l)ecame un-
conscious for a time. There is no evidence of insanitv except
his owm statement hereinabove quoted, and except statements
of two or three witnesses to the effect that the day before the
lOlG American State Kepokts, Vol. 101. [Wash.
tragedy the defendant "looked wild," that he acted "nutty,"
and "like he was going to get on a drunk." The evidence shows
that the defendant was jealous of the deceased, hut it is not suffi-
cient to create any sort of a doubt of his sanity; and we have
no doubt, upon all the evidence, that, both before and at the
time of the crime and afterward, the defendant was as sane as
any man can be who will commit so atrocious a crime. The case
was fairly tried, and there is no error in the record.
The judgment is therefore affirmed.
Fullerton, C. J., and Iladley, Anders and Dunbar, JJ., con-
cur.
Im^niiUii Oft a Drfrnse to Crime is dis'-iiFse'l in the monocrraphic
notes to Knights v. State. 76 Am. St. Eep. 83-97; People v. Hubert,
63 Am. St. Eep. 100-108. And see the recent case of State v. Keerl,
29 Mont. 508, ante, p. 579, 75 Pac. 362. A reference to the note to
Kniglits V. State, 76 Am. St. Eep. 92-97, will show that there is no
little diversity of judicial opinion on the question of burden of proof
when the defense of insanity is set up.
ELLIOTT V. HAWLLY.
[34 Wash. 585., 76 Pac. 93.]
HUSBAND AND WIFE —Wife's Separate Property.— If a
mnrripil woman livinjr with her husband, takes a half interest in a
contract to work a mine on shares, hires a man to do half t'he work,
and pays him cut of her share of the clean-up, while she personally
supervises the work, the net profits of her mininp; enterprise are
her separate property, under a statute exempting property ac-
quired by a married woman "by her own labor," from the debts or
contract liabilities of her husband, (p. 1019.)
HUSBAND AND WIFE— Wife's Separate Property —Partner-
ship Property. — If money acquired by a married woman in one state
;!s a moinber of a partnership there becomes her separate property,
and is brought into another state and deposited as the funds of such
partnership, her share thereof remains her separate property, and real
estate there purchased by her and paid for by a check of such partner-
ship, in a sum less than her share of such deposit, is not subject
to her liusl)and's separate delit. (p. 1020.)
HUSBAND AND WIFE— Wife's Separate Property —Restric-
tions Against Partnerships formed by husband and wife are intended
only to protect the wife against her husband's separate debts, and
not to deprive her of her separate y)roperty. (p. 1020.)
HUSBAND AND WIFE— Wife's Separate Property— Commin-
gling of Funds. — If the amount of money invested by husband and
wife in a joint enterprise is definite as to the amount advanced liy
each, and yiebls a definite income or increase, tliere is no such
coniiningling of their separate propcrtv, as to cause it to lose its
identity, (p. 1021.)
April, 1904.] Elliott v. Hawley. 1017
Embree & Cole and C. S. Preston, for the appellants.
Carr & Preston, for the respondents.
^^^ HADLEY, J. The purpose of this action is to subject
certain real estate in the city of Seattle to execution sale. The
suit was brought by the appellant, as administrator of the es-
tate of E. B. Earle, and against the respondents, who are hus-
band and wife. On the third day of June, 1898, respondent
Frank E. Hawley executed his promissory note for the sum of
one thousand dollars, payable to the order of one Shedd, who af-
terward transferred it to the said E. B. Earle, the latter being
now deceased. Said Hawley claims that the note was given
merely as an accommodation to said Shedd to enable him to
raise some money, but that question is immaterial here, since a
judgment founded upon the note was rendered in favor of the
administrator of Shedd's deceased assignee, and against said
respondent, in the superior court of King county, on the sixth
day of January, 1902. There was no appeal from said judg-
ment, and it is sought here to have it declared that the judgment
is a lien upon the said real estate, and that the land is subject
to levy and sale for the satisfaction of the judgment.
At the time said note was made the said Frank E. Hawley
was unmarried. Afterward, on the ninth day of ^^"^ July, 1898,
he and his corespondent became husband and wife. The ob-
ligation represented by the note was therefore the separate debt
of Frank E. Hawley. The real estate in controversy was con-
veyed to the respondent Katherine W. Hawley on or about Oc-
tober 24, 1899, and the complaint alleges that it was purchased
with the separate funds of the husband. It is averred that the
conveyance was made to the wife without consideration paid or
agreed to be paid by her, and in furtherance of a fraudulent
scheme and design, on the part of both husband and wife, to
cheat, delay and defraud the creditors of the husliand. Tlie an-
swer denies said allegations, and aflfirmatively alleges that the
property was purchased with the separate funds of Katherine
W. Hawley, and that the same is her sole and separate propertv.
A trial was had before the court without a jury. The find-
ings of the court cover many details, and, while we deem it un-
necessary to set them all out. yet a somewhat extended state-
ment of the facts found will lead to a better understanding of
the case. The court found that respondent, Frank R. Hawlev,
had not been a resident of the state of Washington at any time
during the ten years last past, and that respondent, Katherine
1018 American State Reports^ A^ol. 101. [Wash.
W. Hawley, has never been a resident of the state; that the re-
spondents were married in the stiite of California, and there-
after, in the autumn of 1898, living togctlicr as husband and
wife, tliey took up their abode at or near claim No. 9 Above
Discovery, on Little i\Iinook creek, Alaska; that said claim No.
9 was owned by a corporation in which said Frank R. Hawley
was a stockholder; that al)out saul time said ITawloy and his
uncle, one Rcasoner, planned to take a lay, or contract for work-
ing on shares, on a portion of said claim; that thereafter said
Hawley was made manager of '"*^® said corporation, and of its
operations on said claim, and said lay was then taken by said
Reasoner and Katherine W. Hawley in equal shares.
It was also found that the work upon the lay was performed
by said Reasoner and another, the latter l)eing paid for his ser-
vices from jMrs. Haw^ley's share of the cloan-up; that Mrs. Haw-
ley did not perform actual manual labor upon the claim, but
tbat she was frequently on said lay ground while the work was
progressing, inspected the same, and consulted wnth her partner
Reasoner concerning the work; that, as a result of the work upon
tlie lay and the clean-up therefrom. ]\rrs. Hawley 's net share of
the proceeds was about four hundred and fifty doHars. whicli
sum, by her authority and direction, was, bv her liusband, in-
vested for her in the spring of 1899; that said investment w'as
in a partnership known as Mitchell & Co.. composed of the two
respondents and one Archie Mitchell; that the husband invested
in tbe partnership an equal amount of his own funds, and that
said Alitehell owned a half interest in the- partnersliip, leaving
a one-fourth interest each to ^h'. and ^\r<. Hawley; that the
partnership operations were on Anvil crook, near Xome. Alaska,
and the gold representing the partnershii)'s share of tbe clean-
up was ])rought to the United States assay onioe at Seattle,
A\'asbington. in one entire lot. converted iiito money, and de-
posited in a bank at Seattle to the credit and in the name of
]\[itcbell & Co.; that the ])urchase price of said real estate was
paid by a chcnk on said dcpnsit. drawn by respondent, F. L.
Hawley. in tbe firm name of Mitchell & Co.. in favor of E. M.
Carr, who was acting as attorney and agent for IMrs. Hawley
in tbe purcbase of tbe lots; that it was understood, and in good
faitb believed, both by Hawley and his wife, that tbe money so
invested was the separate money of Airs. Hawley. ^*^'* The find-
ings also set out in full a nunibor of sections from Hill's An-
notated Laws of Oro'/nn. as l)eing. by virtue of the Hnited
States statutes, in full force and of^oci tliroirjliout tb.e ter-
April, 1904.] Elliott v. Hawley. 1019
ritory of Alaska until June 6, 1900. Among other provisions of
said statutes are the following :
"Sec. 2993. The property and pecuniary rights of every mar-
ried woman at the time of her marriage, or afterward acquired
by gift, devise or inheritance, shall not be subject to the debts
or contracts of her husband, and she may manage, sell, convey,
or devise the same by will to the same extent and in the same
manner that her husband can property belonging to him.
"Sec. 2993. The property, either real or personal, acquired
by any married woman during coverture, by her own labor, shall
not be liable for the debts, contracts or liabilities of her hus-
band, but shall, in all respects, be subject to the same exceptions
and liabilities as property owned at the time of her marriage or
afterward acquired by gift, devise or inheritance."
"Sec. 2873. Neither husband or wife is liable for the debts
or liabilities of the other incurred before marriage, and except
as herein otherwise declared they are not liable for the separate
debts of each other, nor is the rent or income of such property
liable for the separate debts of the otlicr."
"Sec. 2997. Contracts may be made by the wife and liabili-
ties incurred, and the same enforced by or against her to the
same extent and in the same manner as if she were unmar-
ried."
It was further found that, at the time said conveyance was
made to Mrs. Hawley, her husband was wholly solvent, and
that he then and afterward had on deposit, in the Washington
National Bank of Seattle, moneys belonging to liim largely in
excess of his total indebtedness. From the facts found the
court concluded that the lands purchased became the sole "and
separate property of IMrs. HaAvley, •'*-^^ and tbat her husl)and lias
never at any time had, and has not now, any interest tlicrein.
Judgment was entered denying the demand of the complaint
and dismissing the action. The plaintiff has appealed.
Errors are assigned upon the court's findings, but wo are
satisfied, after reading the evidence, that the facts as found
by the court are sustained by the evidence submitted. If there
was no error in the conclusion that the purchase money for the
lots involved — acquired in the manner it was — became the sep-
arate money of Mrs. Hawley, then tlie judgment was riglit. It
will be observed by reference to sections 2992 and 2993 of the
Oregon statutes quoted above, and which were in force in
Alaska when Mrs. Hawley was engaged in her enterprises there,
that neither real nor personal property, acquired by a married
1020 Americax State IxErouTs, Yoe. 101. [Wash.
woman during coverture by her own labor, shall be liable for
the debt? of her husliand, ])ut shall be absolutely her own, and
subject to her disposal. Under the evidence and the findings,
Mrs. Hawley agreed with Reasoner to work the lay above men-
tioned on shares. This she had a legal right to do, under the
terms of section 2997, supra.
Appellant, however, insists that the proceeds of the lay work
could not have become her separate propcrtv unless she had
actually performed manual la])or upon the claim. We do not
tliink the words "by her own labor," used in section 2993, supra,
were intended to be so restricted, but, as suggested by respond-
ents' counsel, that they ratlier mean, by her own efforts. She
deliberately agreed with Eeasoner to work a lay, and to pay for
tlio services of a man as a helper in her place. She was often
upon the ground to see how the work progressed, and advised
with Eeasoner about it. The helper was paid from her share
of the proceeds. We think, under such circumstances, that the
^"^ money was acquired by her own exertions, and that, under
the hnv, it became her separate money. The court in its find-
ings traced that money to a pubse(|uent investment, and found
that it yielded yet more. The findings do not disclose the
amount, hut the evidence shows that her sliare of the proceeds
of sucli investment in the Xome partnership enterprise was more
than four tliousand dollars, and that said sum was placed in the
Seattle bank, and from it came the money which purchased the
lots in question. Thus the money was acquired by ^Irs. Haw-
ley in Alaska under laws which made it her sejiarate property,
and when it was brought to Seattle it still remained such.
Ajipcllant, however, insists that under Board of Trade v.
TTavdcn. 4 Wash. 203, 31 Am. St. Eep. 919. 30 Tac. 87. 32 Pac.
221. K; L. M. a. ■■)3(». tlie wife could not outer into a contract
f)f partners]! ip with her hushaud. Tt will lie remembered that
the bu^liaiid and wife and one Mitchell composed the Xome part-
n('rslii[i of Mitchell & Co. The rule discTissed and decided in
the case cited is for the protection of the wife's separate jirop-
ertv. to jirevent her from entering into such engagements with
lier hu>h;nid tluit her separate pro]ierty may be taken from her
in satisfaction of his debts. The ])ur]iose of the rule is. not to
work a loss to tlie wife, hut to prevent it. In this instance
iiiouev which went into the Nome enterprise was shown to he her
separate monev. It yielded a large percentage of increase.
Tlie wife was entitled to tlie legitimate increase upon the in-
ve:-tnient of her separate money. It is further urged tliat these
April, 1904.] Abbott v. Thorxe. 1021
funds have been commingled with those of tlie husband, and
that, under Yesler v. Hochstettler, 4 Wash. 349, 30 Pac. 398,
they are not separate funds of the wife. There has never been
a commingling which leads to any confusion. The amount in-
vested by each was a definite sum; ^''*'' each sum yielded its
definite increase, and the whole of each has at all times been
easily ascertainable. This was not confusion, and the separate
interests did not lose their identity as such.
The judgment is affirmed.
Fullerton, C. J., and Mount, Anders and Dunbar, J J., con-
cur.
Profits Produced hy the Skill and Labor of a Married woman in the
use of her separate estate while living with her husband are a
part of such estate, and not earnings belonging to him: Trapnell v.
Conklvn, 37 W. Va. 242, 38 Am. St. Rep. 30, 16 S. E. .570. See, too,
Parrett v. Palmer, & Ind. App. 356. 52 Am. St. Eep. 479, 35 N. E. 713.
A Ilushand and 'Wife may te Partners in many of the American
commonwealths: Hoaglin v. Henderson & Co., 119 Iowa, 720, 97 Am.
St. Rep. 335, 94 N. W. 247; Burner v. Savannah Grocery Co., 98 Ga.
711, 58 Am. St. Eep. 342, 25 S. E. 915. See, however, Gilkerson-Sloss
Commission Co. v. Salinger, 56 Ark. 294, 35 Am. St. Eep. 105. 19 S.
W. 747, 16 L. E. A. 526; Board of Trade v. Havden. 4 Wash. 263,
30 Pac. 87, 32 Pac. 224, 16 L. R. A. 530, 31 Am. St. Rep. 919, and
note.
ABr)OTT V. TITOKXE.
[34 Wash. 692, 76 Pac. 302.]
APPELLATE PRACTICE.— In a ease tried and determined
upon the merits, the plaintiff, as the prevailing party, may raise the
objection upon appeal that the action cannot be maintained in any
event, (p. 1022.)
MALICIOUS PROSECUTION of Civil Action.— An action will
not lie for the prosecution of a civil action with malice and without
probable cause, when there has been no arrest of the per.son, or at-
tachment of the property of the defendant, and no si)ecial in.jury
sustained wliich would not necessarily result in all prosecutions for
like causes of action, (pp. 1U22, 1023.)
Stile k Doolittle, for tlie appellant.
Bogle & IJichardson and liates & ]i[urray, for tlie rcH|iondonts.
<''•*•' DUXBAK, J. This is an action by appellant against
the respondents for a, eons})iracy lo maliciously ])rusfcutc'. The
actiun is based upon allegali(jns set i'urtli iu the case entitled,
10-22 xVmerican State Ri:roRTS, Vol. 101. [Wash.
^'T. B. Dcming, plaintiff, v. Pacific Investment Co., J. 11. Eas-
terday, T. 0. Abbott, L. E. ^Vlieoler, Commercial Investment
Co., Xational Bank of Commerce of Tacoma, and ^l. J. Adams,
defendants." This case came to this court under the title of
"William H. Opie, as administrator, respondent, v. Pacific In-
vestment Co. et al., appellants," reported in 26 Wash. 505, 67
Pac. 231, 56 L. E. A, 778, a judgment of reversal having been
obtained in this court by the appellant in the case at bar, and
the allegations which the appellant claims were malicious having
been found by this court not to be true. Tlio cause proceeded
to trial, and upon the conclusion thereof tlie respondents re-
quested the court for a peremptory instruction to the jury for
a verdict in their behalf, which was granted. The ground upon
which the motion was granted it is not necessary to discuss, un-
der our view of subsequent questions, which arc determinative
of the case.
A great many questions are presented by the record and in
the briefs of counsel, but preliminary to all others is the ques-
tion whether or not this case can be maintained. It is insisted
l)y the appellant that this question cannot l)e raised by the re-
spondents, inasmuch as they prevailed in the court l)clow; but
it is too evident for discussion that it would be a foolish pro-
ceeding, on tlie part of this court, to reverse a case and send it
back for a new trial, when it would finally have to be determined
tliat the action would not lie; and the view we take of this
question renders a discussion of the other proceedings involved
unnecessary. On the main question, whether *''*"* an action for
malicious prosecution AAill lie where there is no arrest of the
person or attacliment of the property, there is some confiict of
authority, and it has been held by Judge Ilanford, in Wade v.
National Bank of Commerce, 114 Fed. 377, tliat such an action
would lie. Also, in ^McCormick Harvester ]\rach. Co. v. WiUan,
63 Xeb. 391. 1)3 Am. St. Eep. 4-19, 88 X. W. -lifT. 56 L. E. A.
33S, a Xcbraska case, the contrary rule announced in Eice v.
Day. 34 Xeb. 100, 51 X. W. 464, was practically ovcrrulcfl.
The lending case sustaining this doctrine is Kolka v. Jones,
6 X. Dak. 4(il. 66 Am. St. Eep. 615, 71 X. AV. 558, wliere the
doctrine was announced that, for the malicious ])rosccution of
a civil action without probable cause, plaintiff was answerable
to the defendant, though the latter was not arrested nor his
rights interfered with in any manner. This is a Xorth Dakota
cas^^. and presents that view of the law vert forcibly and clearly,
and the conflicting cases are discussed with great precision and
April, 1904.] Abbott v. Thorne. 1023
power. But, notwithstanding the able opinion in this case, we
are forced to the conclusion, from an investigation of authori-
ties and a consideration of the principles involved, that the
contrary doctrine is well established, and that an action will not
lie for the prosecution of a civil action with malice and without
probable cause, when there has been no arrest of the person or
attachment of the property of the defendant, and no special in-
jury sustained, or injury which is not the necessary result in
such suits. And this doctrine we think is sustained, not only
by the overwhelming weight of numerical authority, but by the
overwhelming weight of reason.
The right of free allegations in a pleading has always been
considered privileged. Courts are instituted to grant relief to
litigants, and are open to all who seek remedies ^^^ for injuries
sustained; and unnecessary restraint, and fear of disastrous re-
sults in some succeeding litigation, ought not to hamper the
litigant or intimidate him from fully and fearlessly presenting
his case. If the charges prove to be unfounded, costs have been
prescribed by the legislature as the measure of damages. Prior
to the time when costs were allowed to the prevailing party,
there was more reason for sustaining actions on the case; and,
as a rule, the costs and expenses incident to an unsuccessful law-
suit will be sufficient to restrain actions which are founded
purely on malice. While it is no doubt true tliat, in some in-
stances, the peril of costs is not a sufficient restraint, and the
recovery of costs is not an adequate compensation for the ex-
penses and annoyances incident to the defense of a suit, yet all
who indulge in litigation are necessarily subject to burdens the
exact weight of which cannot be calculated in advance, and a
rule must be established which, as a whole, is the most wholesome
in its effect, and accords in tlie greatest degree with public
policy. If the rule were established that an action could be
maintained simply upon the failure of a plaintiff to substantiate
the allegations of his complaint in the original action, litigation
would become interminable, and the failure of one suit, instead
of ending litigation, which is the policy of the law, would be a
precursor of another; and, if that suit porcliance should fail,
it would establish the basis for still anotlicr. For the failure
to establish the fact alleged that an allegation in the original
complaint was malicious, might well Avarraiit the conclusion that
the allegation in the second case, charging malice in the al-
legations of. the first action, was malicious, and so on ad
infinitum.
1024 Ameuican State Reports, Vol. 101. [Wash.
In Wetmore v. Mellinger, 61 Iowa, 741, ^^^ 52 Am. l?ep.
4G5, 18 N. W. 870, it was held that no action would lie for the
recovery of the damages sustained by the institution and prose-
cution of a civil action of malice, and without prol)able cause,
when there had teen no arrest of the person nor seizure of the
property of the defendant, and no special injury sustained which
would not necessarily result in all prosecutions for like causes
of action. In that case, in the argument, it was said : "If an ac-
tion may be maintained against a plaintiff for the malicious
prosecution of a suit without probable cause, why should not a
right of action accrue against a defendant who defends without
probable cause and with malice? The doctrine surely tends to
discourage vexatious litigation, rather than to promote it."
It seems to us that there is much common sense in this ob-
servation, for the affirmative allegations of an answer are as
liable to contain malicious statements as the alfirmative allega-
tions of a complaint; and the result would be, if the doctrine
contended for were uplicld to its logical conclusion, that the
plaintiir in an action would l)e entitled to damages for the un-
supported allegations of an answer; for there is as much pub-
licity given to an answer in an action as there is to a com])laint.
and damages in one case would be just as liable to be incurred
as in the otber. The same rule is announced in Smith v. TTint-
rager. G7 Iowa. 109. 21 N. W. 711, and in :\rcXamce v. Minke,
40 r^rd. 122. wliere the court, in summing up an argument which
holds that tbe action will not lie, says: "Otherwise. ])arties would
1)0 rn]ist:nitly in\-olved in litigation, trying over cases that may
have faile(|. upon tbe mere allegation of false and malicious
prosecution."
In :\layer v. Walter. 01 Pa. St. 2^3. it is said: "I'.nt for tbis
rule, tbe termination of one suit Avould bo. in a nmltitudo of in-
stances, tbe signal for the institution '"*'' of anotlior, in which
the parties would 1)0 reversed; and tbe process might he renewed
indefinitely, in contravention of tlie maxim 'Interest rcipublicae
ut sit finis litium.' "
It was decided in P.itz v. ^leyor. 10 X. J. L. 252, 29 Am. Pep.
233, tliat a civil adion, in all its parts, is a claim of right,
and is pursued only at tbe jteril of costs, if not sustained, sub-
ject to the qualifications that the defendant has l)een arrested
without cause and deprived of liis lil)erty, or made to sufb^r other
special grievances. I'lie same doctrine is spocincally announced
in Supreme Lodge etc. v. Unverzagt, 7G Md. 101, 21 Atl. 323;
April, 1904.] Abbott v. Thorne. 1025
Potts V. Imlay, 4 N. J. L. 330, 7 Am. Dec. 603 ; Terry v. Davis,
114 N. C. 27, 18 S. E. 943; Mitchell v. Southwestern E. R. Co.,
75 Ga. 398; Gorton v. Brown, 27 111. 489, 81 Am. Dec. 245;
Smith V. Michigan Buggy Co., 175 111. 619, 67 Am. St. Rep.
242, 51 N. E. 569; Cincinnati Daily Tribune Co. v. Bruck, 61
Ohio St. 489, 76 Am. St. Rep. 433, 56 N. E. 198 ; Ely v. Davis,
111 N. C. 24, 15 S. E. 878; Luby v. Bennett, 111 Wis. 613, 87
Am. St. Rep. 897, 87 K W. 804, 56 L. R. A. 261 ; Tunstall v.
Clifton (Tex. Civ. App.), 49 S. W. 244; McCord-Collins Co. v.
Levi, 21 Tex. Civ. App. 109, 50 S. W. 606; and many other
cases, a tabulated statement of which would not be of assistance.
But, in addition to outside authority, this court has spoken
with no uncertain sound on this subject, and in a case brought
by the parties to this action in Abbott v. National Bank of Com-
merce, 20 Wash. 552, 56 Pac. 376, it was held that allegations
contained in pleadings filed in a court of competent jurisdiction
are absolutely privileged, where they are relevant and pertinent
to the cause, regardless of their falsity or maliciousness. In the
discussion *^^* of this case it was said by the writer of the opin-
ion, Judge Gordon: "We think it requires no argument to dem-
onstrate that the words complained of were pertinent and ma-
terial to the cause, and the question to be determined is. Were
they absolutely privileged, regardless of whether they were true
or false, used maliciously or in good faith? The doctrine of
privileged communications rests upon public policy, Svhich looks
to the free and unfettered administration of justice, though, as
an incidental result, it may, in some instances, afford an im-
munity to the evil-disposed and malignant slanderer' [citing
Bartlett v. Christhilf, 69 Md. 219, 14 Atl. 518]. It cannot be
doubted that it is a privilege liable to be abused, and its abuse
may lead to great hardships; but to give legal sanction to sucli
suits as the present would, we think, give rise to far greater
hardships."
It is true that this was an action for libel, but the principle
involved is exactly the same as is involved in this case, although
the form of the action was slightly different. Also, in Seattle
Crockery Co. v. Haley, 6 Wash. 302, 36 Am. St. Rep. 156, 3:5
Pac. C50, it was said by Judge Stiles, who wrote the opinion:
"Wliile the issuance of an attachment may do injury to this
mercantile character and credit of a debtor, it is, in that respect,
not different from other judicial proceedings. If the allegations
of the affidavit are in one case libelous, and tend to break down
Am. St. Rep., Vol. 101—65
1026 American State Eeports, Vol. 101. [Wash.
the confidence theretofore reposed in the defendant, they are
no more so than would be a complaint in a suit for money ob-
tained by alleged false pretenses. And so this kind of injury
may he brouglit about as efTcctually where no property at all
has been taken under the writ. The commencement of an or-
dinary suit upon a promissory note has fully as great a tendency
to impair credit as any other proceeding, for the presumption
is that a bu.siness man will take care of his notes at least, if he
has any regard for his standing in the commercial world; and,
if he cannot take care of ^^^ them so that he has to be sued,
the inference most naturally is that he is weak in resources,
and, therefore, not a safe person to credit. But the note may
be forged, or not due, or paid, or there may be counterclaims or
good defenses so that the suit is totally unjustifiable. But does
anyone sue for damages to credit growing out of such proceed-
ings? Not at all, because they are privileged, being proceed-
ings in courts of justice. And so we think this attachment pro-
ceeding, and all allegations of fraud made herein, although they
may injure tlie character, reputation or credit uf the defendant,
are in the same way privileged, and not to be recovered for."
It is said by the appellant that this case is not in point be-
cause it was simply decisive of a measure of damages. But the
decision on the measure of damages was based upon the theory
that the allegations in the complaint were privileged, and that
no action would lie for that reason; and it would certainly be
inconsistent for this court to hold that damages to reputation
and character could be recovered in an action where no attach-
ment had issued, and that they could not be recovered where
the defendant's property had l>een attached, as in the case of
Seattle Crockery Co. v. Haley, 6 Wash. 302, 36 Am. St. Eep.
15G, 33 Pac. G50, just discussed.
We think the principles announced by this court in the cases
just cited would preclude a recovery in this cause, and we are not
disposed to retreat from the positions there taken. In this
litigious age, when speculative lawsuits are rapidly multiplying,
we think that considerations of sound public policy will not
justify courts in announcing a doctrine which tends to encourage
this charact<>r of litigation.
The judgment is affirmed.
Fullerton, C. J., and lladlcy, Mount, and Anders, J J., con-
cur.
April, 1904.] Abbott v. Tiiorne. 1027
The Malicious Prosecution of civil actions is diseiissed in the mono-
graphic note to McCormick Harvesting Co. v. Willan, 93 Am. St. Rep.
454-474. A reference to pages 466-469 of this note will show the
conflict of authority on the question whether an action for the ma-
licious prosecution of a civil action will lie when there has been no
seizure of the person or property of the defendant therein. On the
malicious prosecution of criminal charges, see the monographic note
to Eoss V. Hixon, 26 Am. St. Eep. 127-164.
INDEX TO THE NOTES.
Arson, adverse claimant of building is not guilty of in burning, 26.
attempt to commit, what amounts to, 29.
burning effected through the agency of the owner, 22.
burning, what sufficient to constitute crime of, 23, 24.
confessions of the accused, when may prove, 22.
corpus delicti of crime of, how may be proved, 22.
defenses to prosecutions for, 28.
definitions of, 22.
firing building with intent that the fire shall be communicated
to a dwelling, 23.
husband burning building of his wife, 27.
imprisonment, firing place of for the purpose of escaping, 24, 25.
in the first degree defined, 22, 23.
is an offense against the possession, 25.
malice is of the essence of the crime of, 22.
malice, presumption of, when should be indulged, 22.
motive of the burning, when immaterial, 22, 28.
occupation of the building is an essential element of the crime
of, 27.
owner burning building to obtain insurance, 26, 27.
owner burning his own house, 26, 27.
statutes relating to burning of buildings by occupying tenants,
25, 26.
statutes relating to burning of buildings by owners or claim-
ants, 26, 27.
tenant burning building occupied by him, statutes relating to,
25, 26.
tenant burning building occupied by him, was not guilty of at
the common law, 25.
•wife burning building of her husband, 28.
Bills and Notes, secured by mortgage, when must be construed in
connection with it, 623, 629.
secured by mortgage, when rendered non-negotiable by agree-
ments to" pay taxes, 627.
Boundaries, construction of deeds in which highways are named as,
104.
(1029)
1030 Index to the Notes.
Burglary, taking and entering must be proved otherwise than hy
tracing possession of the stolen property, 482.
possession of stolen goods, effect to be given evidence of, 483.
possession of stolen property as evidence of the guilt of the
possessor, 482, 489, 492, 493.
Carriers, connecting, baggage, presumption as to place of loss of or
injury to, 397.
connecting, burden of proving where injury to goods occurred,
393, 394.
connecting, injury to goods, presumption that it occurred while
they were in the hands of the last carrier, 393, 394.
connecting, injury to goods, there is no presumption that it was
incurred in the hands of the first carrier, 392.
connecting intermediate, presumption that goods were injured
while in the possession of, 394.
connecting, loss of goods, where total, is presumed to have oc-
curred while in the hands of the first carrier, 393, 396.
connecting, perishable goods, presumption as to place of loss of
or injury to, 397.
connecting, presumption as to place of damage to goods in
sealed cars, 398.
connecting, presumption as to place of loss of or injury to goods,
393-397.
connecting, presumption as to place of loss of or injury to goods,
rebuttal of, 399.
connecting, terminal, presumption that loss of or injury to goods
occurred on its lines, 393-396.
expressman, whether may be regarded as, 397, 398.
Confusion of Goods, by accident or vis major, 917.
by an agent of his goods with those of his principal, 923.
by bailee of bailed goods with goods of his own, 924.
by consent, effect of, 917.
by husband of his goods with the goods of his wife, 924.
creditors, rights of, how affected by, 921, 922.
damages for, 925.
definitions of, 913.
demand, when necessary to enforcement of rights in, 925.
doctrine of, 914.
duty of separating property after, 914.
execution or attachment, levy of upon the confused goods, 922.
innocent, effect of, 915.
intermixture of cattle, horses, and other livestock, 918.
intermixture of grain and flour, 917.
intermixture of logs, lumber and other timber, 919.
Index to the Xotes. 1031
Confusion of Goods, intermixture of oil and gas, 920.
intermixture of ore and mineral, 920.
limitation upon the doctrine of, 914.
mortgagee 's rights, effect of upon, 922.
purchasers of goods wrongfully confused, rights of, 921, 923.
replevin to enforce rights in, 924.
rule where the goods of each party remain capable of identifica-
tion and separation, 915.
tenancy in common, when created by, 917.
third persons, how affected by, 920.
what intermixture of property does not create, 913, 914.
where each party can show the value of his property, 916.
where the property is of equal and uniform value, 916.
willful or tortious, effect of, 915.
Constitutional Law, sales in bulk, statutes requiring notice to be
given of, 986.
Counties, nature and character of, 154.
status as representing the state or sovereign, 162.
statutes of limitation, whether run against, 154-156.
suits against could not be maintained at the common law, 154.
Criminal Law. See Arson; Burglary; Larceny; Possession of Stolen
Property.
Damages, exemplary, corporations, liability of to, 734, 735.
exemplary, definitions of, 732.
exemplary, for acts of servants can be awarded only when the
act was within the scope of their employment, 738.
exemplary, for acts of servants may be awarded when they would
have been awarded had the act been done by the master,
737, 738.
exom{.'lary, for acts of servants, upon what grounds allowed,
735, 736.
exemplary, for arrest due to servants, 745-748.
exemplary, for assaults made by servants, 760-762, 769-772.
exemplary, for false iniprisoninent or illegal search by servant,
744.
exem])lary, for illegal sales of intoxicating liquors by servants,
750.
exemplary, for insults by servants, 743.
exemplary, for joinder of trespasses with assaults, 760-772.
exemplary, for negligent sales of poisons by servants. 765.
exemplary, for publications of libel by servants, 752-754.
exemplary, for trespass on real property, 767.
exemplary, for unchaste, reckless or grossly careless libels, 753.
exemplary, for unlawful searches due to servants, 749.
1033 Index to the Notes.
Damages, exemplary, general principles of law applicable to, 734.
exemplary, nature of, 732.
exemplary, punishment, whether in the nature of, 732, 733.
Definition of arson, 22.
of confusion of goods, 913.
of exemplary damages, 732.
of search-warrants, 330.
of sovereignty, 158, 159.
of state, IGO.
of unreasonable search, 328.
Druggists, damages, exemplary, when liable to, for negligent acts of
employes, 765-767.
Ezecntion, amendment of, because of variance in amounts, 555.
amendment of, because of variance in names, 556.
amendment of, by aflfixing the seal of the court, 558.
amendment of, by supplying omitted words of command, 555.
amendment of, clause of attestation, 556.
amendment of, discretion of the court to grant or refuse, 560.
amendment of, effect of, 559.
amendment of, effect of not making, 561.
amendment of, in matters of form, 553.
amendment of, leave for, when may be granted in court other
tlian that in which the writ issued, 553.
amendment of, leave for will not be granted unless in further-
ance of justice, 551.
amendment of, notice of application for, v.diat and when to be
given, 552. 553.
amenilir.ent of, persons against whom may be authorized, 5G1-563.
amendment of, power of is inherent in all courts, 552.
amendment of, power of, limitations u;ioti, 551.
amendment of, practice to be pursued in i)rocuring, 552.
amendment of, theon,' upon which directc^d, 552.
amendment f)f, time within which may Le authorized, 558.
amendment of, to conform to the judgment, 554, 555.
amendment of, to supply the signature of the clerk, 557.
amendment of, when directed to the sheriff of one county, but
delivered to the sheriff of anotlier, 554.
amendment of. witli respeet to the direr-tions to the officer, 554.
amendment of, with respect to the return day, 556.
Highways, abandonment or vacation of, abutting property owners
may oliject to, 117.
abandonment or vacation of, rights of abutting property owners
after, 117.
Index to the Notes. 1033
Highways, additional uses to which property owners need not sub-
mit, 109, 110.
adjacent property owners are prima facie entitled to middle of,
104.
adverse possession of, title of the owner of the fee may be
devested by, 105.
abutting property owner has no right to frighten horses upon,
108.
abutting property owner, is entitled to lateral support from, 110.
abutting property owner, rights of in, 106-117.
abutting property owner, right of to maintain actions for ob-
structing, 109.
covenant of seisin is not broken by, 105.
deviations from to avoid obstructions, etc., in, property owner
must submit to, 111.
drainage, abutting property owner may use for the purposes of,
115.
easements which the public has in, 105.
ejectment by abutting property owners for lands covered by, 117.
freehold of, in whom remains, 103, 104.
gates across, right of land owners to maintain, 108.
grants of land as bounded by, construction of, 104.
grass growing in belongs to the owner of the abutting property,
111.
injunction to protect rights of abutting property owners in, 117.
minerals in belong to the owners of the abutting property, 111.
nuisances in, suits by abutting property owners to abate, 118.
nuisances in, which an abutting property owner has the right to
abate, 110.
obstructions upon, remedy of property owners for, 109, 110,
obstructions upon, rights of property owners to remove, 109.
ownership in property covered by which is retained by the land
owner, 103.
ownership of the public in the lands covered by, 103.
pasturage of stock upon, who entitled to, 112.
private persons may not use for private purposes against tlie
will of the owner of the fee, 105, 106.
private purposes, extent to which land owner may apply to, 107.
remedies of abutting property owners for invasion of their
rights in, 117, 118.
rights in of tlie owner of the land covered by, 106.
servitudes, additional upon, what are, 110.
soil, gravel, etc., right of the public to use, 115.
timber on, right of the public to use, 116.
1034 Index to the Notes.
Highways, trees and shrubs, right of abutting property owners to
plant in, 113.
trees and shrubs upon, damages for cutting of by road overseers,
113,
trees and shrubs upon, right of telegraph and telephone corpora-
tions to trim, 112, 113.
trees and shrubs upon, title to is in the abutting property own-
ers, 112.
trespass, action of by abutting property owners for injuries to
property in, 117.
trespassers on property covered by, remedy of the land owner
for, 105.
watorcourses, abutting property owners should not be shut off
from by, 114, 115.
waters in, right to the use of, 114.
Larceny, possession of recently stolen property as evidence of, 482,
485, 492.
Libel, damages, exemplary for though due to the act of a servant,
753-760.
malice in publication of, when imputed to the proprietor of
a newspaper, 758.
retraction of, refusal to publish, 758, 759.
Limitation of Actions, adoption by courts of equity of statutes re-
lating to, 146.
a;ii'li(\s in favor of the state or government, 149.
construction of statutes of affecting states or governmcntjil
bodies, 166-169.
count iop. whether subject to statutes imposing, 154, 156.
(lifT rcncf" between and the doctrine of laches, 146.
fori i:,m (Tovernnicnts, whether bound by statutes imposing, ]58.
geiH>ral words in do not apply to the government nor to govern-
mental agencies, 166, 167.
in af'tions by the state to protect private rights, 172.
in actions by the Ignited States on claims assigned to it, 183.
in actions on official bonds, 186, 187.
in actions to recover public funds, 185.
ill actions to recover taxes, assessments, etc., 185.
in actions where the United States does not sue for a govorn-
iiiental ri-ht, 181, 183.
ill actions where tlie fnite'l States is a nominal, but not a real,
]iarty in interest, 170.
in quo warranto proceedings, 187.
in suits by municipal corporations to recover taxes, ISO.
in suits ]\v tlie sovereign based on ordinary business transac-
tions, 184.
Index to the Notes. 1035
Limitation of Actions, in suits to escheat property, 188.
in suits to restrain public nuisances, 187.
in suits to set aside patents to public lands, 187.
maxim, "Nullum tempus occurrit regi," purposes of, 146, 147.
municipal corporations, whether bound by statutes imposing,
157.
municipal corporations, whether affected by when assuming to
protect a public right, 157, 175-177,
nature and purposes of statutes respecting, 145.
school boards and school districts, whether subject to statutes
imposing, 156.
reasons for not applying against the king or government, 146.
states are not bound by statutes imposing, 147, 148, 152.
states, governmental bodies or agencies whieli represent, 161-164.
states, statutes expressly applying to, what rights affected by,
160, 164.
states, statutes imposing, when deemed applicable to, 164.
statutes of, what necessary to make applicable to the state or
the United States, 164.
statutes respecting affect the remedy only, 145.
streets, whether apply to actions to recover possession of, 169.
United States, state statutes imposing do not apply to actions
by, 151, 152, 165.
Master and Servant, acts of servant, when deemed to be in the course
of his employment, 738, 739.
definitions of servant, 734.
difference between corporations and natural persons as, 734, 735.
exemplary damages against masters for arrest by servants, 745.
exemplary damages against masters for assaults by servants, 760-
762.
exemplary damages against masters for collisions in highways
due to servants, 763.
exemplary damages against masters for fplso impiisonment by
servants, 744.
exemplary damages against masters for insults and indignities
of servants, 743.
exemplary damages against masters for negligent sales of poisons
by servant.s, 765.
exemplary damages against masters for publication of lil>el by
servants; 752-758.
exemplary damages against masters for tresi)ass committed by
servants, 767-772.
exemplary damages may be recovered for nets of a servant
where they could be recovered for a like act of the master,
737, 738.
1036 Index to the Xotes.
Master and Servant, exemplary damages, on what grounds may be
awarded against the former for the acts or neglects of the
latter, 735, 736.
liability of the former for the acts of the latter, basic theory of,
733.
ratification by masters of sales made by servants, 762.
ratification by masters of unauthorized acts of servants, 739.
relation of, when exists, 733, 734.
Maxim, "Nullum tempus occurrit regi," 144-188.
Municipal Corporations, statutes of limitation, whether applicable to
suits and actions by, 157, 175-177.
Newspapers, libel, liability of to exemplary damages for publishing,
753-760.
Partition, judgment in, adverse claims of title whether may be de-
termined by, 872, 873.
judgment in, after-acquired title, whether bound by, 876, 877.
judgment in, child en ventre sa mere, whether bound by, 869.
judgment in, claims for owelty are necessarily settled by, 873.
judgment in, contingent interests, efiTect of upon, 870.
judgment in, directing sales, effect of upon rights of dower, 867.
judgment in, dower, effect of upon inchoate right of, 866, 867.
judgment in, effect of, general rule, 864.
judgment in, failure of title after, right to contribution for, 874.
judgment in, husband of cotenant, when bound by, 866.
judgment in, improvements, claims for, when necessarily settled
by, 873.
judgment in, incidental questions which may be settled by, 873.
judgment in, inclioate interests perfected subsequently, whether
bound by, 876, 877.
judgment in, issues or questions settled and deteriniiu'd by in
statutory proceedings, 871-874.
juilgnient in, issues or questions settled by, 870.
judgment in, liens, how affected by, 867, 868.
judgment in, liens upon property, claims for, whether settled by,
873.
judgment in, none but parties to the action are liound by, 865.
judgment in, nonresidents may be bound l)y, 865.
judgment in, j)ersons not in esse, when and how bound by, 868,
869. (
jmlgment in, possession only determined by at the common law,
870, 871.
judgment in, privies of the parties are Ijound by, 866.
judgment in, purchasers pendente lite are bound by, 866.
judgment in, title acquired by one of the parties pendente lite is
bound by, 875.
Index to the Notes. 1037
Partition, judgment in, title paramount is not affected by, 875.
judgment in, unknown owners, effect of proceedings against, 870.
judgment in, warranty of title, whether implied by, 875.
judgment in, wife of cotenant, when bound by, 866.
sales in, effect of upon liens and on rights of dower, 866-868.
Payment, presumption of, whether applies against a state, 149.
Possession of Stolen Property, as evidence of guilt, application of the
doctrine to prosecutions for burglary, 482-484, 489.
as evidence of guilt, application of the doctrine to prosecutions
for larceny, 482-485.
as evidence of guilt, application of the doctrine to prosecutions
for receiving stolen property, 484.
as evidence of guilt, application of the doctrine to prosecutions
for robbery, 484.
burden of accounting for in criminal prosecutions, 485, 486, 502.
by cotenant or associate, 520.
conviction, M'hen sustainable if founded on, 493.
effect of access to of the family of the accused, 516-518.
effect to be given to is for the jury, 492.
evidence of does not warrant a conviction where the jury en-
tertains a reasonable doubt of guilt, 503.
evidence of is always admissible, 485.
evidence of, when sufficient, 505, 506.
explanation of may create a reasonable doubt, though not satis-
factory, 522.
explanation of, showing guilt of some other crime, 522.
explanation of, sufficiency of is for the jury, 503.
explanation of, what amounts to, 520.
false explanation of, effect of, 523.
identification of the property or money, 506, 507.
inference to be drawn from is for the jury, 523.
inference which may be drawn from, 495.
instructions concerning the weight of, when erroneous, 502, 518,
519.
is a mere circumstance tending to show the guilt of the pos-
sessor, 497, 498.
is prima facie evidence of the guilt of the possessor, 492.
joint possession of, whether creates an inference of guilt, 573.
lapse of time, when destroys the inference arising from, 510, 511.
money, rules relating to, when applicable to, 506-510.
must be exclusive to create inference of guilt, 513, 515.
must be of property recently stolen to create an iufurence of
guilt, 510.
nature of presumption arising from, 499.
1038 Indfx to the Notes.
Possession of Stolen Property, part of the property, possession of,
whether creates inference of guilt as to the whole, 518, 519.
presumption arising from is not one of law, but of fact, 488, 496.
presumption of guilt arising from unexplained, 486-490.
presumption of guilt arising from, when becomes conclusive,
490, 491.
presumption of innocence, when outweighs presumption of guilt
arising from, 494.
rebuttal of the inference arising from, 492.
recent, what is meant by in the law applicable to, 511.
reputation of the accused in rebutting the presumption arising
from, 504.
weight to be attached to evidence of, 498.
what constitutes, 509.
where others have had equal access to the place of deposit, 514,
515.
Presumption as to the place of loss of or injury to goods as between
connecting carriers, 393-399.
of guilt arising from the unexplained possession of recently
stolen property, 48G-490.
Quo Warranto, statutes of limitation, whether applicable to proceed-
ings in, 187.
Receiving Stolen Property, possession of stolen property as evidence
of the guilt of the possessor, 484.
Robbery, possession of stolen property as evidence of the guilt of the
possessor, 482.
Search of Premises of Private Persons, constitutional guaranties
against, 328, 329.
goods to be searched for must be described in a search-warrant,
332.
not in aid of the administration of justice, 329.
policemen have no authority to make without a warrant, 330.
power to inspect does not include power to search, 330.
provisions of the constitution of the United States concerning
do not apply to states, 329.
right of exf'inption from is not dependent upon constitutional
provisions, 329.
search-warrants, when sufficient to authorize, 330-332.
trespass, action of for wrongful, 334.
unreasonable defined, 328.
violation of rifjlit of exemption from, what is, 329.
warrant necfssary to authorize, 329, 330.
warrant of arrest, whether authorizes, 334.
where a person is accused of crime, 329.
Index to the Xotes. 1039
Search-warrants are not available in civil proceedings, 330.
definitions of, 330.
goods to be searched for, description of in, 331, 332.
justification under, 333, 334.
liability of persons suing out, 333, 334,
malicious prosecution of proceedings for, 332, 333.
necessity of, to authorize a search of private premises, 329, 330.
place to be searched, description of, when sufficient, 331.
place to be searched must be described in, 331.
premises which may be searched under, 331, 332.
statutes authorizing, 330, 331,
warrant of arrest, when answers the purposes of, 334.
when suflBcient to authorize a search of private premises, 331.
Sovereignty, definitions of, 158, 159.
in whom vests, 159.
States, acquiescence by in the exercise of a right, effect of, 153.
general words in a statute of limitations will not be held ap-
plicable to, 166-169.
governmental bodies which represent and are therefore not sub-
ject to the statute of limitations, 161, 162.
laches are not imputable to, 148, 153.
limitation, statutes of do not run against, 148, 152.
limitation, statutes of operate in favor of, 149.
limitation, statutes of, whether may create presumption of pay-
ment against, 149.
Taxation, due process of law, what proceedings in aid of may be pro-
vided without impairing the right to, 606.
judicial proceedings in aid of, what may be authorized, 606, 607.
proceedings in rem for the enforcement of tax lien or title, 607.
Tenancy in Common, confusion of goods, when created by, 917.
United States, assignment to of a debt barred by the statute of
limitations, 183.
laches cannot be imputed to, 182.
limitation of actions by when not suing for a public right, 181-
183.
limitation, statutes of in actions where it is a nominal plaintiff
and not the real party in interest, 171.
limitation, statutes of, what language make applicable against,
164.
statutes of limitation do not affect claims of, 151.
INDEX.
ACCORD AND SATISFACTION.
ACCORD AND SATISFACTION, Payment in Part, When
Amonnts to. — The acceptance from an insolvent debtor of part pay-
ment in full satisfaction of a claim is founded on such a considera-
tion that the entire debt is discharged. (Iowa.) Engbretson v.
Seiberling, 279.
ACCRETION AND RELICTION.
See Waters and Watercourses, 4, 5.
ADMIISnSTRATORS.
See Executors and Administrators.
ADOPTION.
PARENT AND CHILD— Adopted Children.— Next of Kin of an
adopted child is the next of kin by blood and not the adopting parent,
under a statute concerning adoption which wholly fails to bestow
upon the adopting parent any right to inherit the estate of the
adopted child. (N. J. L».) Heidecamp v. Jersey City etc. Ey. Co.,
707.
ADVERSE POSSESSION.
REMAINDERMEN — Ouster of — Adverse Possession.— If life
tenants and part of the remaindermen join in a warranty deed, and
tiie grantee enters into possession thereunder and continues sucli
possession for the statutory period of limitation, paying taxes and
making improvements, without knowledge of any defect in the title,
which defect is known to the remaindermen not joining in tlie con-
veyance, this amounts to an ouster of the latter whidi ripens into
a title by adverse possession. (Iowa.) Crawford v. Meis, 337.
AFFIDAVITS.
1. AFFIDAVIT. — Where Statements in an Affidavit are made posi-
tively auil directly, an additional stateiiient ihat alliaut beiievcs
them to be true, does not detract therefrom. (Neb.) Leigh v. Green,
592.
2. AFFIDAVIT— Information and Belief. — Where a showing by
aflitlavit is required as to facts nliicli are necessarily iiiattci-s ni' iii-
fnniiation and belief, an nfTi(la\it on information and belief is suffi-
cient. (Neb.) Leigh v. Green, 592.
AGENCY.
See Principal and Agent.
Am. St. Rep., Vol. 101-66 (10-il)
1042 Index.
APPEAL AND ERROR,
Time, Bond 07id Xoticc of Appeal.
1. APPEAL AND ERROR.— The FaUure to Perfect an Appeal at
the Term specified in the notice does not entitle the respondent to
! dismissal, nor prevent the notice from being operative to give
the appellate court jurisdiction. (Iowa.) lioff v. Shoekley 289.
2. APPELLATE PRACTICE— Notice of Appeal.— If the' bill of
exceptions recites service of notice of appeal upon counsel for the
respondent and his acknowledgment thereof, a contention tiiat ser-
vice of such notice does not appear from tlie record is without merit.
(Mont.) Porter v. Plymouth Gold Min. Co., 569.
3. APPELLATE PRACTICE— Notice of Appeal.— A contention
that the record does not contain the notice of api)eal and judgment-
roll properly certified is without merit, if the appellant has procured
a new certificate from the clerk of the lower court, reciting that
the record contains "full, true and correct" copies of the judjrment-
roll and notice of appeal, to which no objection is made. (Mont.j
Porter v. Plymouth Gold Min. Co., .569.
4. APPELLATE PRACTICE— State as Appellant— Appeal Bond.
If the probate court, in the settlement of a decedent's estate, de-
cides the liability of a devise, legacy, bequest or inheritance to pay
a collateral inheritance tax as provided by statute, an appeal may
be taken from such judgment as authorized by statute, and if the
state takes such appeal, it may be done without giving an appeal
I<ond or filing a written notice of intention to appeal. (Ohio fcjt.)
Humphreys v. State, 8SS.
Review of Questions.
5. APPELLATE PRACTICE— Review of Demurrer.— The com-
))laint, the demurrer, and the judgment of the court on the demurrer,
constitute a part of the record proper, and such judgment is review-
alile without exception, but a motion for a new tiial relates to matters
only that are preserved by the bill of exceptions. (Mo.) Jones v.
Kansas City etc K. E. Co., 434.
6. APPELLATE PRACTICE— Disposal of Demurrer.— If a de-
murrer to a coniplaint has been sustained, on the ground that the
complaint docs not state a cause of action, tiie judgment entered there-
on must be sustained on appeal, if the appellate court concludes that
such demurrer should have been sustaineil on some other ground, al-
though such ground was not suggested to the appellate court, and
although the lower court may h.ave sustained the demurrer for a
wrong reason. (Mont.) Porter v. Plymouth Gold Min. Co., 5G9.
7. APPELLATE PRACTICE.— In a case tried and determined
upon the merits, the jdaintiff, as t'he prevailing party, may raise the
olijectiiin uyion aj)peal that the action cannot bo maintained in any
event. (Wash.) Abbott v. Thorne, 1021.
8. APPEAL AND ERROR.— Where a Surrogate Finds that moneys
de])Ositcd in the names of A and B Indong to the latter only,
and the appellate division reverses upon the law, the court of
appeals can only imjuire whether there is evidence in the record suf)-
porting the finding implied in the decision of the surrogate, and if
thero is. the judgment of tlie appellate division should be reversed.
(N. Y.) Matter of Bareficld, 814.
9. APPEAL AND ERROR. — The Reversal of a Decree of the
Appellate Division by an order which does not disclose that the
Index. 1043
reversal is on a question of fact must be presumed to have been
upon a question of law. (N. Y.) Matter of Barefield, 814.
10. APPEAL AKD ERROR. — ^Where the Decision of the Trial
Court does not separately state the facts found, and the order of
the appellate division does not state that the reversal is upon a ques-
tion of fact, it must be presumed that all the facts warranted by
the evidence and necessary to support the judgment were found by
the trial court. (N. Y.) Matter of Barefield, 814.
Effect of Reversal.
11. JUDGMENT — Reversal as Affecting Judicial Sale. — If a mort-
gagee purchases the land at foreclosure, and sells it pending an ap-
peal taken without a stay of execution, the title of his grantee, who
is chargeable with notice of the defeasible title of his grantor, is
defeated by a reversal of the judgment. (Cal.) Di Nola v. Allison,
84.
12. JUDGMENT — Reversal as Affecting Judicial Sale. — The rights
of one whose property has been sold under a judgment subsequently
reversed, do not depend, in California, upon section 957 of the Code of
Civil Procedure. That section is not restrictive of his rights, but is
a remedial statute to be liberally construed. (Cal.) Di Nola v.
Allison, 84.
13. JUDGMENT — Reversal and Restitution. — Where a mortgagee
purchases the land at foreclosure, and sells it pending appeal, his
vendee cannot, on the reversal of the judgment, invoke the protection
of section 957 of the California Code of Civil Procedure, which au-
thorizes the court to make restitution so far as is consistent with the
protection of a purchaser "at a sale ordered by the judgment."
(Cal.) Di Nola v, Allison, 84.
14. JUDGMENT — Reversal and Restitution.— If a mortgagee pur-
chases the land at foreclosure, and sells it pending appeal, the re-
versal of the judgment restores the mortgagor to his original estate,
and he does not need an order of restitution to enable him to assert
his right thereto. Before the purchaser from the mortgagee can have
his title quieted, he must establish a title in himself superior to that
of the mortgagor. (Cal.) Di Nola v. Allison, 84.
ARGUMENT OF COUNSEL.
See Trial, 1.
ARSON.
ARSON is an Offense against the possession, rather than the
property itself, and one who is in possession under a lease of the
building alleged to have been burned by him is not guilty of araon.
(Ala.) State v. Young, 21.
Note.
Arson, adverse claimant of building is not guilty of in burning, 2G.
attempt to commit, what amounts to, 29.
burning effected through the agency of the owner, 22.
burning, what sufficient to constitute crime of, 23, 24.
confession's of the accused, when may prove, 22.
corpus delicti of crime of, how may be proved, 22.
defenses to prosecutions for, 28.
10i4 Index,
Arson, definitions of, 22.
firing building with intent that the fire shall be communicated
to a dwelling, 23.
husband burning building of his wife, 27.
imprisonment, firing place of for the purpose of escaping, 24, 25.
in the first degree defined, 22, 23.
is an offense against the possession, 25.
malice is of the essence of the crime of, 22.
malice, presumption of, when should be indulged, 22.
motive of the burning, when immaterial, 22, 28.
occupation of the building is an essential element of the crime
of, 27.
owner burning building to obtain insurance, 26, 27.
owner burning his own house, 26, 27.
statutes relating to burning of buildings by occupying tenants,
25, 26.
statutes relating to burning of buildings by owners or claim-
ants, 26, 27.
tenant burning building occupied by him, statutes relating to,
25, 26.
tenant burning building occupied by him, was not guilty of at
the common law, 25.
■wife burning building of her husband, 28.
ASSIGNMENT.
ASSIGNIMENT OF WAGES to be Earned in future under an
-existintr contract of ciiiployniont for an indefinite time is not opposed
to public poliny, and is valid i*" made for a valuable consideration
and without fraud. (111.) Mallin v. Wcnham, 233.
ASSISTANCE, WKIT OF.
1. A WRIT OF ASSISTANCE V/ill Issue Only Against Parties to
a suit, or persons in privity with theni, who have been concluued 1 y
a dccroo, and yet refuse to permit the purchaser at jiidicial sale
thereunder to take possession. (Neb.) Merrill v. Wright, 645.
2. WBIT OF ASSISTANCE.— Questions of Title are not to bo
tried on an ;i[i[ili('ation for a writ: of assi-^t ance, as ;i<^;iiii-it jx'V^o'w iii
possession clniminfT advorselv to the parties and not bound bv the
decree. (Xeb.) Merrill v. Wright, 615.
3. WKIT OF ASSISTANCE.— It is Error to Award a writ of
assistance a^'ainst one wlio entei-cil upon Jand jicndento lite, chiiii;-
ing an independent title not derived frdin, or in sin-i'i'ssinn to. nnv of
the parties to the suit or their privies. (Xeb.) Merrill v, Wriglit,
()!.3.
4. WHIT OF ASSISTANCE— Possession Under Void Tax Deed.—
One in possession in "^ood I'.-iith under a, void tax ileed cl.'unis by an
inilependent title, and will imt lie disyw-csied under a writ of aa-
sistiincc. (Xeb.) Merrill v. Wriglit, 045.
ATTACHMENT.
1. ATTACHMENT cannot be Maintained rpon a eomjlnint whicli
does II. )t state facts suHiciiMit to constituti' a cause of action. (Aidiit.)
I'orter v. I'ly mouth Gold Min. Co., 560.
Index. 1045
2. ATTACHRIENT.— A Bond Conditioned to be Void if the prin-
cipal therein performs his contract, is not a contract by the sureties
for the "direct payment of money" within the meaning of a statute
authorizing an attachment in an action upon such a contract. (Mont.)
Ancient Order of Hibernians v. Sparrows, 563.
3. ATTACHMENT — Sales. — Caveat Emptor applies to the pur-
chaser at a sheriflE's sale under attachment, and he acquires no greater
title than the defendant in attachment had at the time of the sale.
(Ala.) Milner etc. Co. v. De Loach etc. Co., 63.
See Trover, 4.
BANKEUPTCY.
1. BANKBUPTCY. — Effect of Discharge in bankruptcy is but a
personal release, and does not exonerate the effects of the debtor
to which a valid lien has attached and which is not expressly an-
nulled by the bankruptcy statute. (111.) Mallin v. Wenham, 233.
2. ASSIGNMENT OF WAGES— Bankruptcy.— A discharge in
bankruptcy does not release a prior assignment of wages to be earned
in future, nor destroy the lien created by such assignment. (111.)
Mallin v. Wenham, 233.
BANKS AND BANKING.
1. BANKING. — Notwithstanding the Deposit of Moneys Jointly
in the Names of A and B, they may be proved, bv th^ testimonv of
the latter, to belong to him exclusively. (N. Y.) Matter of Bare-
field, 814.
2. BANKS AND BANKING— Negotiable Instruments— Negli-
gence of Indorsee. — If a bank by mistake informs a person that it
holds a certain sum of money on deposit to his credit, and he
shows the letter so inforniincr to a third person, and requests from
the bank a draft for the amount of the deposit, which, when re-
ceived he indorses to such third person, who pays him the amount
of the deposit, as between such third person and the bank the latter
must stand the loss. (Utah.) Heavey v. Commercial Nat. Bank,
966.
3. BANKS AND BANKING— Wrongful Dishonor of Depositor's
Check — Measure of Damages. — In the absence of malice, oppression
or bad motive, the wrongful refusal of a bank to honor its deposi-
tor's check makes it liable only for compensatory damages and not
for punitive damages, or damages for humiliation or mortification of
depositor's feelings. (Ky.) American Nat. Bank v. Morey, 379.
4. BANKS AND BANKING— Dishonor of Check— Element of
Damages. — If a bank wrongfully dishonors its depositor's check,
without malice, the fact that such depositor had a nervous chill
when her check was protested and returned, cannot be considered in
determining the damages due her from such transaction. (Ky.)
American Nat. Bank v. Morey, 379.
5. BANKS AND BANKING— Dishonor of Check— Measure of
Damages. — If a bank wrongfully dislionors a depositor's check, with-
out malir-e, the depositor is entitled to recover only compensatory
(lamnges for time lost, expr-nses incurred. lo?s of business, or other
loss sustained by reason of the dishonor of the check. (K}^) Ameri-
can Nat. Bank v. Morey, 379.
See Gifts, 5; Forgery; Trusts, 1.
ions Index.
BENEFIT SOCIETIES.
See Insurance.
BICYCLES.
See Highways, 5,
BILLS AND NOTES.
1. MORTGAGE and Note Should be Construed Together.— A note
and mortgage executed and delivered as one transaction will be cdii-
strued together; provisions in the mortgage relating to the indebted-
ness itself and attempting to modify the terms of the note will bo
construed with the note. (Neb.) Consterdiue v. Moore, 6-i).
2. NEGOTIABLE INSTRUMENTS— Negligence of Drawer.— If
the drawer of a bill of exchange, draft or check has been induced
through fraud to deliver it to an impostor, believing him to be the
real person named therein, and such impostor negotiates the in-
;;trument, and receives payment thereon from an innocent third per-
son, as between the bona fide holder and drawer, the latter must
stand the loss. (Utah.) Ilcavey v. Commercial Kat. Bank, 9(3G.
3. NEGOTIABLE INSTRUMENTS— Indorsement in Blank.— One
who indorses a note in blank and intrusts it to another to liil up
and have discounted for the indorser's benefit, is liable upon it to
a bona fide holder for value, who receives it before maturity, in the
usual course of business, from the person to whom it was intrusted,
notwithstanding that the latter filled it up for, and fraudulently con-
verted it to, a purpose entirely different from th.Pit for wlii'h he
the sender of the note. (N. J. L.) Mechanics' Bank v. Charda-
voyne, 701.
4. NEGOTIABLE INSTRUMENTS— Indorsement in Blank—
Bona Fide Holder. — If a bank receives a note in the regular course of
business, in good faith and without notice of any infirmity in it,
in payment of an indel)te(lnoss due from the person sending it, whose
wife has indorsed it in blank, and intrusted it to him to discount for
her benefit, the bank thereby Ijeeomes a bona fide holder of the note
for value, and entitled to prot<>('tion as such as against the wife of
the sender of the note. N. J. L.) Mechanics' Bank v. '"Iiarda-
voyne, 701.
5. BILLS AND NOTES.— Payment to the Original Payee of a
non-neirotiablc note, without notice of nny transfer thereof, discharges
the paper. (Neb.) Consterdino v. Moore, 620.
Note.
Bills and Notes, secured by mortgage, when must be construed in
connection with it, 623, 629.
secured ])y mortgage, when rendered non-negotiable by agree-
ments to pay taxes, 627.
See Banks and Banking.
BOUNDARIES.
See Waters and Watercourses, 4, 5.
Xote.
Boundaries, construction of deeds in which highways are named as,
10-t.
Index. 1047
BUEGIiAEY.
BURGLARY. — Possession of Recently Stolen Goods, in the ab-
sence of a satisfactory explanation of the source of such possession,
justifies a finding that the possessor broke anj entererl the building
from which they were stolen. (Iowa.) State v. Eaphael, 334.
Note.
Burglary, taking and entering must be proved otherwise than by
tracing possession of the stolen property, 482.
possession of stolen goods, effect to be given evidence of, 483.
possession of stolen property as evidence of the guilt of the
possessor, 482, 489, 492, 493.
CARRIERS.
Stations and Depots-
1. RAILROADS — Defective Station Platform. — A woman who
goes to a railway station in the evening after business hours, the
depot being closed, the lights extinguished, and the agent gone, to
find her husband, who has gone there to attend to some shipping,
assumes the risk of the platform being unsafe. (Minn.) Sullivan
V. Minneapolis etc. Ey. Co., 414.
2. RAILWAY DEPOT— Duty to Persons There Near Train
Time. — While a railway company cannot be expected to be contin-
uously on its guard as against loiterers and trespassers, yet it should
anticipate that its station-house and depot grounds may be used as
a place of meeting by people for various lawful purposes at or about
the time of the arrival and departure of trains. (Minn.) Klug-
herz V. Chicago etc. Ey. Co., 384.
3. RAILWAY DEPOT— Duty to Persons There — Time as Affect-
ing.— The time, in respect to the arrival of trains, at which a person
visits a depot is to be taken into consideration in determining the
duty owed him by the railway company. But it is not possible to
lay down a general rule as to the limit of time under all conditions
within which one shall be restricted to visit such premises at his
peril; it is a question of fact to be determined according to the cir-
cumstances of each particular case. (Minn.) Klugherz v. Chicago
etc. Ey. Co., 384.
4. RAILWAY STATION— Duty to Persons Meeting There.— As
toward one who goes to a depot an hour and ten minutes before train
time in good faith to meet a person on a matter of business who.
he believes, will take the train, the railway company, in unloading
a gravel train near by, owes the duty of ordinary care, (Minn.)
Klugherz v. Chicago etc. Ey. Co., 384.
Tickets.
See Injunctions, 3-7.
5. RAILROADS — Power to Issue and Affix Conditions to Special
Tickets. — A railroad company may issue special tickets, based upon
reduced rates, make them nontransferable, and valid only in the
hands of the original purchaser, and such tickets may be liniite"! as
to time, or as to occasion, or they may be unlimited as to time or
o-^casion and the original purchaser of such ticket cannot assign
or transfer it. or any rights whatever thereunder, to any third per-
son. (Mo.) Schubach v. McDonald, 452.
1048 Index.
6. BAHiKOADS — Eights Under Special Nontransferable Tickets.
The purchaser of a special railroad ticket at reduced rates, non-
transferable on its face cannot sell or transfer it to a third per-
son to be used by him or another, and if he does the railroad com-
pany may invoice the aid of a court of equity to cancel the contract
because of the fraud thus perpetrated, or if the ticket is used by
another, it may sue for damages for a breach of the contract. (Mo.)
Schubach v. McDonald, 452.
Passcugcrs.
7. NEGLIGENCE. — Passengers Never Assume the risk of the car-
rier's negligence. (Mo.) Parks v. St. Louis etc. Ky. Co., 425.
8. NEGLIGENCE. — Passengers Assume the Ordinary Risks inci-
dent to the act of traveling, but not an added d;ingor caused by the
negligence of the carrier. (Mo.) Parks v. St. Louis etc. Ey. Co.,
425.
Stopping at C7-ossing.
9. RAILWAY, Liability of to Passenger for not Stopping at
Crossings. — If an engineer is not liable to a passenger for not stop-
ping at a crossing, as required by the code of Town, the corporation
in whose employ he is cannot be held liable, (towa.) State v.
Chicago etc. Ky. Co., 254.
Connecting Carriers.
10. CONNECTING CARRIERS —Presumption of Negligence. — If
apples, shipped over connecting railroads, were in good condition
when accepted by the first carrier but damaged by frost when ile-
livered by the last carrier, the burden is on it to show that the loss
did not result from any cause for which it was responsible, although
the apples were transported in through sealed cars. (Minn.) Beede
v. "Wisconsin Cent. Ey. Co., 390.
Note.
Carriers, connecting, baggage, presumption as to place of loss of or
injury to, 397.
connecting, burden of proving where injury to goods occurred,
393, 394,
connecting, injury to goods, presumption that it occurred while
they were in the hands of the last carrier, 393, 394.
connecting, injury to goods, there is no presumption that it was
incurred in the hands of the first carrier, 392.
connecting intermediate, presumption that goods were injured
while in the possession of, 394.
connecting, loss of goods, where total, is presume<l to have oc-
curred while in the hands of the first carrier, 393, 39G.
connecting, perishable goods, presumption as to place of loss of
or injury to, 397.
connecting, presumption as to place of damage to goods in
sealed cars, 398.
connecting, presumption as to place of loss of or injury to goods,
393-397.
connecting, presumption as to place of loss of or injury to goods,
rebuttal of, 399.
Index. 1049
Carriers, connecting, terminal, presumption that loss of or injury to
goods occurred on its lines, 393-396.
expressman, whether may be regarded as, 397, 398.
See Kailroads; Street Eailroads.
CAVEAT EMPTOR.
See Attachment, 3.
CHATTEL MORTGAGE.
See Fixtures.
CONCEALED WEAPONS.
See Weapons.
CONFLICT OF LAWS.
See Judgments, 6-8.
CONFUSION OF GOODS.
1. CONFUSION OF GOODS is the Willful and Fraudulent inter-
mixture of the chattels of one person with the chattels of another,
without the consent of the latter, in such a way that they cannot be
separated and distinguished. (Pa. St.) Stone v. Marshall Oil Co.,
904.
2. CONFUSION OF GOODS— Doctrine and Effect.— Although
such a term as "confusion of goods" is generally used, there is in
fact, properly, no such doctrine as a "confusion of goods." There
is a fact of confusion of goods, which if committed with a fraudu-
lent motive, subjects the transaction to an inflexible rule, that the
wrongdoer shall not profit by, nor the innocent person suffer from,
the wrong. (Pa. St.) Stone v. Marshall Oil Co., 904.
3. CONFUSION OF GOODS.— If a Natural Gas Company fraudu-
lently commingles gas from leased property with gas from other
properties under its control, keeping no account thereof, it is bound
to account to the owner of the leasehold, who is entitled to one-fourth
of the profits therefrom, for one-fourth of the profits from the wholo
gas confused. (Pa. St.) Stone v. Marshall Oil Co.. 904.
Note.
Confusion of Goods, by accident or vis major, 917.
by an agent of his goods with those of his principal, 923.
by bailee of bailed goods with goods of his own, 924.
by consent, effect of, 917.
by husband of his goods with the goods of his wife, 924.
creditors, rights of, how affected by, 921, 922.
damages for, 925.
definitions of, 913.
demand, when necessary to enforcement of rights in, 925.
doctrine o,f, 914.
duty of separating property after, 914.
execution or attachment, levy of upon the confused goods, 922.
1050 Index.
Confusion of Goods, innocent, effect of, 915.
intermixture of cattle, horses, and other livestock, 918.
intermixture of grain and flour, 917.
intermixture of logs, lumber and other timber, 919.
intermixture of oil and gas, 920.
intermixture of ore and mineral, 920.
limitation upon the doctrine of, 914.
mortp;agee's rights, effect of upon, 922.
purciiasers of goods wrongfully confused, rights of, 921, 923.
rejilcvin to enforce rights in, 924.
rule where the goods of each party remain capable of identifica-
tion and separation, 915.
tenancy in common, when created by, 917.
third persons, how affected by, 920.
what intermixture of property does not create, 913, 914.
where each party can show the value of his property, !U6.
where the property is of equal and uniform value. 91G.
v.illful or tortious, effect of, 915.
CONSTITUTIONAL LAW.
fn Genrral.
1. CONSTITUTIONAL LAW.— Laws may be Declared Invalid,
although not repugnant to any expressed restriction contained in the
atate constitution. (Ky.) Lexington v. Thomjison, 361.
2. CONSTITUTIONAL LAW.— The Court Inclines to so Construe
a Statute as to validate it. (N. Y.) People v. Lochner, 773.
3. CONSTITUTIONAL LAW.— Statutes will not be Declared
Void simply bocnuse, in the opinion of the court, they are unwise,
(ir opjiosed to justice and equity. Statutes must in some way ■violnt(?
constitutional provisions in order that thev may be declared void.
(Utah.) Block & Griff v. Schwartz, 971.
I'olice Pmrrr.
4. CONSTITUTTONAL LAW.— Police Power may be exorcised
1o promote the safety, health, comfort and welfare of society, and
1o sustain legislation as a projier exercise of sucli power, it must
h:ive reference to some such end. (Utah.) Block & Griff v.
Schwartz, 971.
5. CONSTITUTIONAL LAW — Exercise of Police Power.—
Xeither the legislnture nor the executive can, under the guise of
police regulation, arbitrarily or unjustly, witliout good cause, restrict
or infringe upon tlie property rights or the liberty of any person
■within the jirotection of the constitution, and whenever the legis-
lature undertakes to determine what is a proper exercise of the
iiolic(> power, its <leterniinatinn is a suljject of judicial scrutiny,
n'tali.)' Block & Griff v. Schwartz. 971.
I nhor T,nir<t.
6. CONSTITUTIONAL LAW.- The Fact that a Provision of a
Statute is Part of the Labor Law does not estnldish that it is not also
a health law, if its jirovisions are germane to that subject, and if
sustainable as a health law, it cannot be declared unconstitutiounl
lieiause made a part of a statute purporting to regulate labor. (X.
y.) People v. Lochner, 773.
Index. 1051
7. CONSTITUTIONAL LAW A Statute Limiting the Hours of
Labor of Employes in a Bakery to sixty hours in each week and ten
hours in one day is constitutional, because it must be assumed that
its object is to protect the health of such employes. (N. Y.) People
V. Lochner, 773,
Regulation of Bakeries.
8. CONSTITUTIONAL LAW— Power to Regulate Bakeries.— It
is within the police power of the legislature to so regulate the
conduct of the business of carrying on bnkories as to best promote
and protect the health of the people. (X. Y.) People v. Lochner,
773.
Sale of Property.
9. CONSTITUTTOFAL GUA.TIANTY that No Person Shall be
Deprived of life, liberty or property, without due process of law
embraces not only freedom from servitude and from imprisonment
and arbitrary rt'stmint of person, but also all our religious, civil,
political and personal rights, includina the right in each subject to
j>urchase, hold, and sell or dispose of his property in the same way
that his neighbor may, and of such ' ' liberty ' ' no one can be de-
prived without due process of law. (Utah.) Block & Griff v.
Schwartz, 971.
10. CONSTITUTIONAL LAW— Liberty to SeU Property.— A
statute which deprives an owner of his "liberty" to sell his prop-
erty, or contract in relation thereto, in the same manner as others
engaged in the same business may lawfully do, invades his guaran-
teed constitutional rights, and cannot be upheld. (Utah.) Block &
Griff V. Schwartz, 971.
11. CONSTITUTIONAL LAW. — Exercise of Police Power docs
not justify the enactment of a statute prohibiting solvent mer-
chants from disposing of their stock of goods in bulk without
notifying their eroditors. (C'tah.) Block & Griff v. Schwartz, 971.
12. CONSTITUTIONAL LAW— Statutes Regulating Sale of Stock
of Goods in Bulk. — A statute proliibiting, under a pen-ilty, any mer-
chant, whether solvent or insolvent, from selling or disposing of his
stock of goods in bulk, without an inventory thereof, and notifica-
tion to his creditors, and which npplies also to persons acting in a
fiduciary capacity and under judicial process, and which docs not
apply to merchants who are not indebted, is unconstitutional as de-
priving a solvent merchant of his property and lilierty to contra<-r
without due process of law, and as being class legislation. (Utah.)
Block & Griff V. Schwartz, 971.
Class Legislation.
13. CONSTITUTIONAL LAW.— Statutes Which Punish Crimin-
ally One Person for the doing of an act which another person in the
same line of business may lawfully do, are unconstitutional, as be-
ing class legislation, and as a deprivation of ])roi)orty and liberty
without due process of law. (Utah.) Block & Griff v. Schwartz,
971.
Forbidding Spite Fever?.
14. CONSTITUTIONAL LAW— Spite Fences.— A statute declar-
ing that any structure in the nature of a fence unnecessarilv ex-
ceeding five feet in height and erected for the purpose of annoyinor
1052 Index.
the owner or occupant of adjoining premises shall be deemed a
private nuisance, and providing that an owner or occupant thereby
injured in the comfort or enjoyment of his estate may maintain an
action for the damages sustained, and designed to prohibit an un-
necessary and unreasonable use of land by the owner thereof, is
valid, and not an unconstitutional intorfcronce with the riglits of
private property. (N. H.) Horan v. Byrnes, 670.
See Municipal Corporations, 1, 2; Eailroads. 6; Statutes; Taxation;
Weapons.
Note.
Constitutional Law, sales in bulk, statutes requiring notice to be
given of, 986.
CONTRACTS.
1. CONTRACTS— Conditions.— If land furnished under an agree-
ment to furnish land necessary for "borrow pits" is not practicable
for the work contracted for, the contractor is entitled to recover
money necessarily expended in procuring other land practicable for
that purpose. (Ky.) Illinois Cent. R. R. Co. v. Manion, 345.
2. CONTRACTS, Ratification of. — A void contract is binding upon
neither party, and cannot be ratified. If ratified in form, it is a new
contract, and takes effect only from the date of the attempted ratifica-
tion. (N. Y.) Blinn v. Schwarz, 806.
3. CONTRACTS. — A Voidable Contract Binds One Party But not
the Other, who may ratify or rescind it at pleasure. (N. Y.) Blinn
v. Schwarz, 806.
4. CONTRACTS — Avoidance for Fraud or Mistake. — A condition
in a contract for work on a railroad that "the amount of work
jiorformcd under this contract shall be determined by the mensnre-
Dients and calculations of the engineer in charge," amounts to noth-
ing more than a provision for a means of determining the amount
of the work, and either fraud or mistake of the engineer is ground
for relief on the part of the contractor. (Ky.) Illinois Cent. R. E.
Co. V. Manion, 345.
See Insane Persons; Sunday, 2.
CONVERSION.
1. WILLS — Equitable Conversion. — If a testator devises land to
his wife for life, in trust for their children, and directs the ex-
(•(•ut"r, after her death, to sell the property and divide the proceeds
MiDiiiig the children, the effect of this direction is to convert the
land into piTsnnalty. (Cal.) Bank of I'kiah v. Rice, 118.
2. WILLS — Election to Take Land Instead of Its Proceeds. —
Where a testator directs land to be sold and the jiroceeds distri-
1 uled among designated beneficiaries, they may elect, before the
sale is made, to take the land instead of its preceeds. The estate
ii thereljy reconverted into realty, and their relation to it is the
same as if it had been directly devised to them. But until they
make the election for a reconversion, and manifest the same to
the executor, they are not entitled to the possession of the land,
or to exercise any dominion over it. (Cal.) iiank of Ukiah v. Eice,
US.
3. WILLS — Insufficient Election to Take Land Instead of Its
Proceeds. — Where a testator devises land to his wife for life, in
Index. 1053
trust for their children, and directs the executor, after her death,
to sell the property and divide the proceeds among the children,
and one of the children gives a mortgage on his undivided inter-
est, which is followed by the execution of a sheriff's deed under
a judgment of foreclosure, such election to take the land instead
of its proceeds, on his part only, is insufficient to work a recon-
version of the property into realty; so, too, is the bringing of an
action for partition by the purchaser under the mortgage, when
it is not alleged that the beneficiaries have made an election, and
some of them are minors. (Cal.) Bank of Ukiah v. Eice, 118.
See Trover.
CONVEYANCES,
See Deeds.
COPYRIGHT.
See Monopolies.
CORPORATIONS.
Exeriitinv of Tnsfrumcnts.
1. CORPORATIONS — Conveyances by Presumption from Affixing
seal. — If a corporate seal is affixed to an instrument, and the sig-
natures' of the proper corporate officers are proven, it must be pre-
sumed that such officers had the authority which they exercised. The
seal itself is prima facie evidence that it was affixed by proper au-
thority. (Ala.) Graham v. Partee, 32.
2. CORPORATIONS — Instrument Sealed but not Signed— Evi-
dence.— If the corporate seal is affixed to a corporate instrument,
such seal is prima facie evidence that it was thus affixed by
proper authority, and the instrument duly executed, and it is tlion
admissible in evidence, although the corporate name is not signed
thereto. (Ala.) Graham v. Partee, 32.
Transfer and Purchase of Stock.
See Gifts, 2, 3.
3. CORPORATIONS— Contract for Sale of Stock.— If a corpora-
tion contracts to sell stock and agrees tluit nt ;i (;tMl:iiii tiiiie Thereafter
the purchaser shall be entitled to return the stock upon the hap-
pening of a designated event, the corporation c:ninot claim that tlie
sale was valid, and the contract to repurchase void, without rescinding
the sale, returning the purchase moner, and plncinn- tlie pnrchnser in
statu quo. (Mont.) Porter v. Plymouth Gold ^lln. Co. 569.
4. CORPORATIONS— Right to Purchase Their Own Stock.— A pri-
vate corporation may purchase its own stock if the transaction is fair
and in good faith, free from actual or constructive fraud, provide,]
the corporation is not insolvent, or in process of dissolution, and that
the rights of its creditors are in no nav affer-ted by the'pnrehase
(Mont.) Porter v. Plymouth Gold Min. 'Co., 5C9.
5. CORPORATIONS— Right to Purchase Stock— Decrease of
Stock.— 1 he mere repurchase of its capital stock hv a private corpora-
tion does not -tend to decrease ils e;;t)ita! stock. !inless the directors
absolutely merge or extinguis'a such stock after its rej)urchase.
(Mont.) Porter v. Plymouth Gold IMin. Co., 569.
1054 Index.
6. CORPORATIONS— Contract for Repurchase of Stock— With-
drawal of Subscription. — A contract by wiiieli a ])riviite corporation
agrees to sell stock and to repurchase upon the happening of a cer-
tain event, is not ultra vires or void, as a secret contract between
the corporation and a subscriber, by which such subscriber is at
liberty to withdraw his subscription, but is valid and enforceable.
(Mont.) Porter v. Plymouth Gold Min. Co., 569.
7. CORPORATIONS — Purchase of Stock.— A purchaser of the
stock of a private corporation under a contract entitling him to re-
convey to the corporation upon the happening of a certain event,
and to receive the price paid, cannot compel the corporation to re-
purchase the stock, without a redelivery of it to the corporation.
(Mont.) Porter v. Plymouth Gold Min." Co., 569.
8. CORPORATIONS— Option to Repurchase Stock.— If an option
to repurchase corporate stock is to be exercised "at the expiration
of six months from date," ti'.e seller is not bound to repurchiiso until
tlic expiration of the six months, and an offer to redeliver the stock be-
fore that time is premature, and ineffective. (Mont.) Porter v.
Plymouth Gold Min. Co., 569.
9. CORPORATIONS — Repurchase of Stock.— The fact that the
buyer of corporate stock is "ready and wilJing'' to return it in
accordance with a contract for its rojmrcliase, does not constitute
;;:i offer to return such stock. (Mont.) Porter v. Plvmouth Gold
Min. Co., 569.
See Taxation, 3, 4.
COTENANCY.
See Partition; Tenancy in Common.
COUNTIES.
THE STATUTE OF LIMITATIONS Runs Against a County
to recover public money wrongfully collected and withheld by one
of its fiducial agents, who is an ex-county officer. (Idaho.) Bannock
County V. Bell, 140.
Note.
Counties, nature and character of, 154.
status as representing the state or sovereign, 162.
statutes of limitation, w'hether run against, 154-15G.
suits against could not be maintained at the common law, 154.
COURTS.
JUDICIAL UTTERANCES, Restriction upon Effect of.— Tn ap-
plying cases wliich have ])een decided, what may luive l)cen said in
tlic opinion should be confined to, and limited by. the facts of the
ciise under consideration when the expressions relied upon were made,
and should not be extended to cases where the facts are essentially
(lifTcrent. (N. Y.) Crane v. Bennett, 722.
CREDITOR'S BILL.
See Fraudulent Conveyance.
Index. 1055
CRIMINAIi LAW.
Insanity.
1. INSANITY AS DEFENSE.— Instructions stating that lunatics
and insane persons are incapable of committing crimes, and that if
the defendant was an insane person he should be acquitted, are er-
roneous if not qualified by adding a definition of the term "in-
sanity," because some forms of insanity are no defense to crime.
(Mont.) State v. Keerl, 579.
2. INSANITY as Defense to Crime is a question of fact for the
.I'ury to determine under proper instructions. (Mont.) State v.
Keerl, 579.
3. INSANITY as Defense to Crime. — An insane person in crim-
inal law, incapable of committing a crime, is one who is so mentally
unsound as to be unable to form a criminal intent to commit the
particular crime charged. (Mont.) State v. Keerl, 579.
4. CRIMINAL LAW — Insanity as Defense. — The Burden of Prov-
ing insanity as a defense to crime is upon the defendant, who must
establish it by a preponderance of the evidence. (Wash.) State v.
Clark, 1006.
5. CRIMINAL LAW — Insanity as Defense — Instructions. — If in-
sanity is set up as a defense to murder, it is not error to instruct the
jury to convict if satisfied beyond a reasonable doubt that the ac-
cused committed the crime as charged, if other instructions fully and
fairly inform the jury upon the defense of insanity. (Wash.) State
V. Clark, 1006.
6. CRIMINAL LAW — Incest — Insanity as Defense — Guardian-
ship of Wife — Evidence. — If a husband charged with incest sets up
insanity as a defense, the record of the adjudication of his insanity
and of the appointment of his wife as his guardian is not admissible
in evidence to show that she who instituted the prosecution for incest
was in duty bound to look after his defense. Her attitude in the
matter can be better shown by other evidence. (Wash.) State v.
Glindemann, 1001.
7. MURDER — Insane Delusions. — Instructions that insane delu-
sions, to excuse murder, must be such that if things were as the
person possessed of such delusions imagined them to be they would
justify the act springing from such delusioHS, and that one suffering
from a partial delusion was in the same situation as to responsibility
as if the facts with respect to which the delusion existed were real,
are radically wrong, and fatally erroneous. (Mont.) State v. Keerl,
579.
8. CRIMINAL LAW — Insanity as Defense. — If a person is charged
with the commission of a crime, and if at the time of its commis-
sion, by reason of disease affecting his mind, his mental faculties wore
so impaired or perverted, as that he was unable to distinguish between
right and wrong as to the particular act with whicli lie is charged,
or if he was able to recognize that it was wrong, and yet was impelled
by some impulse, originating in disease, to the commission of the
act, and was unable by reason of the diseased condition of his mind,
enfeebling his will, or otherwi^^e, to refrain from its commission, he
is not guilty by reason of his insanity. (Mont.) State v. Keerl,
579.
Eridevre of Ffipht.
9. EVIDENCE OF GUILT.— Flight is not Presumptive Evidence,
but is only a circumstance to be considered in connection with the
105G Index.
other evidence in arrivinjr at tbp euilt or innocence of tlie accused.
(Iowa.) State v. Poe, 307.
Possession of Stolen Goods.
10. CRIMINAL LAW — Possession of Recently Stolen Goods— Ex-
planation.— If the attendant circumstant'os are such as to satisfy the
jury of the falsity of the exrdanation of the possession of recently
stolen poods, and of the guilt of the possessor, his conviction is
justified. (Iowa.) State v. Eaphael, 334.
11. CRIMINAL LAW — Possession of Recently Stolen Goods. —
Burden of Proof is on one in possession of recently stolen goods, to
satisfactorily explain his possession. (Iowa.) State v. Kaphael,
334.
12. STOLEN PROPERTY— Recent Possession of— Presumption of
Guilt. — To raise a presumption of guilt from the possession of re-
cently stolon property it is necessary that it be found in the exclu-
sive possession of the prisoner. He can only be required to account
for the possession of things which he actually and knowingly pos-
sessed. (Mo.) State v. Drew, 474.
13. STOLEN PROPERTY— Recant Possession of— Presumption of
Guilt. — The finding of recently stolen articles on the premises of a
man of a family, without showing his actual, conscious possession
thereof, discloses only a prima facie constructive possession, and is
not such a possession as will justifv a presumption of guilt by reason
thereof. (Mo.) State v. I^rcw, 474.
14. STOLEN PROPERTY as Evidence of Crime.— If in a prose-
cution for larceny there is no e\ideuce of a conspiracy between
the accused and another to commit the crime, articles taken from
such other's house under a search-warrant are not adniissible in evi-
dence. (Mo.) State v. Drew, 474,
Di/'nip Diclaratiojis.
15. EVIDENCE — Dying Daclarations. — Wliat weight should be
given to dying declarations is for the determination of the jury
alone. (Ala.) Sims v. State, 17.
16. HOMICIDE— Evidence of Dying Declarations. — Oral evidence
may be received of dying declarations made by the deceased and re-
duced to writing, but not signed by him. (Ala.) Sims v. State, 17.
17. EVIDENCE — Dying Declarations. — To render dying d-ciara-
tio'is ailnii-silde, it is only necessary that they lie made afler the
infliction of a niortal wouuii, and after hope f)f recovery was nlian-
dnned bv ihn de(darant. and after ho realized his imT'fnding deatli.
(Ala.) Sims v. State, 17.
18. EVIDENCE.— Dying Declarations of a de^onsed made and
written wlien he has not lost all hope of recovery, but realiirmed by
him as triu^ and enrrect, after he realized his impending di':itii. and
while he was in full possession of his mental facultir-s, are admis-
silile in e\ idnici', altlioiigli not read over to tlie declarant ;it the
time he realiirmed tlieir corrertness. (Ala.) Sims v. State, 17.
Jury,
See Jury.
19. JURY Separation in Criminal Trial. — If, after the final sub-
mission of a friiiiinal case, the otficer in charge of the jurors separates
them into tliree groups, and puts them in three different rooms on
Index. 1057
three different floors of a hotel, for eight or nine hours, the defendant
is entitled, without an affirmative showing of prejudice, to a new
trial. (Cal.) People v. Adams, 92.
20. CRIMINAL TRIAL — Province of Judge and Jury. — I'he re-
sponsibility of determining whether or not the defendant in a crim- .
inal case should be found guilty rests entirely upon the jury, and
the judge should be careful in his instructions not to use language
which might naturally be understood by the jury as intimating his
opinion that the defendant is guilty, or as an argument against him.
(Cal.) People v. Adams, 92.
Instrtictions.
21. MURDER. — Instructions in a murder case, that certain evi-
dence is corroborative of other evidenco. is a comment on the weight
of the evidence, and therefore reversible error. (Mont.) State v.
Keerl, 579.
22. TRIAL. — Instructions assuming that an accused has made cer-
tain statements adverse to his interest are erroneous and should be
limited to the statements proved on the trial. (Mo.) State v.
Drew, 474.
Sentence.
23. CRIMINAL LAW — Inadequate Sentence — ^Habeas Corpus. — A
judgment of imprisonment for a term less than that prescribed by
statute for the offense committed is not void, and the prisoner will
not be discharged on habeas corpus. (Cal.) In re Eeed, 138.
Note.
Criminal Law. See Arson; Burglary; Larceny; Possession of Stoien
Property.
CROPS.
See Damages, 3.
CURATIVE STATUTE.
See Executions, 2.
DAMAGES.
1. DAMAGES— Mental Suffering. — In an Action Sounding in Tort
the rule allowing recovery for mental suffering is mueh more lihoral
than in actions on contract. (Iowa.) Cowan v. Western Union Tel.
Co., 268.
2. DAMAGES, Consequential in Actions of Tort.— One who com-
mits a trespass or other wrongful act is liable for all the direct in-
juries resulting from such act, although such injury could not have
been contemplated as a probable result of the act done. Hence, in
this class of actions, recovery may be had for mental suffering.
(Iowa.) Cowan v. Western Union Tel. Co., 268.
3. DAMAGES — Measure of for Destruction of Crops. — The meas-
ure of damages for injury to or the destruction of growing crops
is their value in the condition they were in at the time of injury or
destruction, and not the market value at the time of their maturity
or during the market season. (Utah.) Lester v. Highland Boy
Gold Min. Co., 988.
Am. St. Kep., Vol. 101—67
1058 iNUifix.
4. DAMAGES, UNLIQUIDATED— Interest.— In tort for un-
liquidated damages interest on the damnges recovered from the
time of the commencement of the action to the time of verdict, can-
not be assessed. (Utah.) Lester v. Highland Boy Gold Miu. (Jo.,
988.
5. DAMAGES FOR PERSONAL INJURY— When not Excessive.
A verdict of seven thousand seven hundred and fifty dollars for in-
juries received by a boy of fourteen years requiring the amputation
of his right leg below the knee is not excessive. (Minn.) Perry v.
Tozer, 416.
6. EVIDENCE. — In an Action for Personal Injuries the evidence
of experts as to future consequences which are expected to follow
the injury are competent, but to authorize such evidence the appre-
hended consequences must be such as in the ordinary course of nature
are reasonably certain to occur. Consequences which are contingent,
speculative, or merely possible are not proper to be considered in
estimating damages, and may not be proved. (N. Y.) Briggs v.
New York Cent. etc. E. R. Co., 718.
7. EVIDENCE. — A Medical Expert Should not be Permitted in
an action for personal injuries to state numerous tilings which might
result as consequences of the injury, as that it might affect the
bladder or kidneys or other organs of the body and in the end become
permanent. (N. Y.) Briggs v. New York Cent. etc. R. R. Co., 718.
See Banks and Banking, 3-5; Death; Telegraphs and Telephones.
Note.
Damages, exemplary, corporations, liability of t«^ 734, 735.
exemplary, definitions of, 732.
exemplary, for acts of servants can be awarded only when the
act was within the scope of their employment, 738.
exemplary, for acts of servants may be awarded when they would
have been awarded had the act been done by the master,
737, 738.
exemplarv, for acts of servants, upon what grounds allowed,
735, 736.
exemplary, for arrest due to servants, 745-748.
exemplary, for assaults made by servants, 760-762, 769-772.
exemplary, for false imprisonment or illegal search by servant,
744.
exemplary, for illegal sales of intoxicating liquors by servants,
750.
exemplary, for insults by servants, 743.
exemplary, for joinder of trespasses with assaults, 769-772.
exemplary, for negligent sales of poisons by servants, 765.
exemplar}', for publications of libel by servants, 752-754.
exemplary, for trespass on real property, 767.
exemplary, for unchaste, reckless or grossly careless libels, 753,
exemplary, for unlawful searclies due to servants, 749.
exemplary, general principles of law applicable to, 734.
exemplary, nature of, 732.
exemplary, punishment, whether in the nature of, 732, 733.
DANGEROUS PREMISES.
See Negligence, 10-12.
Index. 1059
DEATH.
1. RAILBOADS — Negligence Causing Death — Measure of Dam-
ages.— An instruction that the measure of damages against a rail-
road for negligently causing the death of its employ^ is all of the
wages that he would probably have earned during the period of his life
expectancy, is objectionable as authorizing too great a recovery, but is
not ground for reversal when the jury does not return an excessive
verdict. (Mo.) Jones v. Kansas City etc. R. R. Co., 434.
2. ACTIONS — Unnecessary Parties — Construction of Statute. —
If a statute creates a liability against a railroad company for dam-
ages due to ajiy of its employes arising out of the negligence of its
agents, and declares that the amount recovered shall inure to the
exclusive benefit of the widow and children of the deceased employe,
and if he is not a resident of the state, that suit may be maintained
by the widow, such statute makes the widow the trustee of an ex-
press trust, and suit may be maintained by her alone for the benefit
of herself and her children, the joining of such children as parties
plaintiff, though unnecessary, is not a fatal defect to the maintenance
of the action. (Mo.) Jones v. Kansas City etc. R. R. Co., 434.
DEEDS.
1. DEED FOR SECURITY — Liability not Limited by Considera-
tion Recited. — The security of a deed, in form absolute, given to in-
demnify sureties, is not limited to the nominal money consideration
recited, but extends to the full amount for which the sureties ulti-
"lately prove liable. (Neb.) County of Harlan v. Whitney, 610.
2. DEEDS — Cancellation — Agreement for Support. — If a grantor
conveys land and the consideration is an agreement by the grantee
to snpport, maintain, and care for the grantor during the remainder
of his or her natural life, and the grantee refuses or neglects to
comply with the contract, the grantor may, in equity, have a decree
rescinding the contract and deed and reinvesting him with the title
to the land, on the ground that the contract was fraudulent in its
inception. (111.) Stebbins v. Petty, 243.
3. DEEDS — Agreement for Support — Cancellation as Against
Grantee's Heirs. — If a grantee performs her agreement to support a
grantor during his lifetime, given as a consideration for his deed,
the failure of the minor heirs of such grantee to perform the agree-
ment after her death is not ground for cancellation of the deed,
unless there is an unsatisfied judgment in some prior proceeding re-
quiring such heirs to perform the grantee's agreement. (111.) Steb-
bins V. Petty, 243.
4. DEEDS FOR SUPPORT — Reservation of Lien — Foreclosure.—
If a deed executed in consideration of the grantee's agreement to
support the grantor during his lifetime reserves a lien on the land
to secure performance of the agreement, the grantor may foreclose
such lien against the grantee's heirs who fail to perform such agree-
ment. (111.) Stebbins v. Petty, 243.
See Insane Persons; Reformation of Instruments.
DE FACTO OFFICER.
See Oflticors.
1060 Index.
DEFICIENCY JUDGMENTS.
See Judgments, 9, 10.
Note.
Definition of arson, 22.
of confusion of goods, 913.
of exemplary damages, 732.
of search-warrants, 330.
of sovereignty, 158, 159.
of state, 160.
of unreasonable search, 328.
DEPOTS.
See Carriers, 1-4.
DESCENT AND DISTEIBUTION.
See Executors and Administrators; Homestead.?, 3.
DISHONOR OF CHECK.
See Banks and Banking, 3-5.
DRAINAGE.
See Taxation, 1.
Note.
Druggists, damages, exemplary, when liable to, for negligent acts of
employes, 765-7G7.
DYING DECLARATIONS.
Bee Criminal Law, 15-18.
EASEMENTS.
1. EASEMENT— Ways Created by Deed— Enforcement. — A reser-
vation in a deed of a specific part of granted premises to be used
as a driveway in common by the grantees, and adjoining owners of
land, creates an easement in the property granted appurtenant to
the adjoining land of the grantor, and binding on that conveyed to
the grantee, which passes with the land to all subsequent grantees,
and whicli may be protected or enforced at law or in equity. (Ohio
St.) Gibbons v. Ebding, 900.
2. EASEMENTS — Ways— Right to Close with Gates or Bars.— If
a right of way is created by reservation in a d(M>d, the grantee ac-
quires the property subject only to such right and may use the land
for all purposes not inconsistent with it, and in the absence of any-
thing in the deed or in the circumstances under which the way
was acquired or used, showing that it was to be open, the grantee
may put gates or bars across it, unless they would unreasonably
interfere with its use. (Ohio St.) Gibbons v. Ebding, 900.
See Municipal Corporations, 5-9.
Index. 1061
EJECTMENT.
EJECTMENT — Title Suflcieiit to Maintain. — A purchaser at
foreclosure sale of property conveyed by a first and second mort-
gage shows title sufficient to maintain ejectment against the mort-
gagor, by introducing and proving a deed of the premises from the
second mortgagee to him as purchaser at foreclosure sale. (Ala.)
Graham v. Partee, 32.
ELECTRICITY.
ELECTEIC RAILEOADS— Negligence— Injury to Stock.— A
railroad company operating its road by electricity and knowingly
running its trains under conditions rendering it impracticable for
those in charge to prevent injuring stock straying upon its tracks,
is accountable for the loss when injury occurs. (Ala.) Anniston
Electrical etc. Co. v. Hewitt, 42.
ELEVATED RAILWAY.
See Municipal Corporations, 7-9.
EMINENT DOMAIN.
1. EMINENT DOMAIN — Public Use. — Constitutional provisions
that private property shall not be taken for public use without com-
pensation, mean that private property cannot be taken for strictly a
private use. (Utah.) Nash v. Clark, 953.
2. EMINENT DOMAIN— Public Use. — Property is taken for a
public use, when the taking is for a use that will promote the public
interests and will tend to develop the natural resources of the state.
(Utah.) Nash v. Clark, 953.
3. EMINENT DOMAIN — Public Use — Irrigation. — The owner of
an arid farm may, under the exercise of the right of eminent domain,
condemn a right of way through the ditch of another, for the purpose
of carrying water to 'his land for irrigation purposes. Such taking is
for a public use. (Utah.) Nash v. Clark, 953.
4. EMINENT DOMAIN — Public Use. — Irrigation of lands is for
a public purpose, and water thus used is put to a public use. (Utah.)
Nash V. Clark, 953.
EMPLOYEE'S LIABILITY.
See Master and Servant.
EQUITY.
EQUITY. — Jurisdiction in Equity Depends not so much on the
want of a common-law remedy as upon its inadequacy, and its ex-
ercise often rests in the discretion of the court; in other words, tho
court may take upon itself to say whether the common-law remedy
is, under all the circumstances and in view of the conduct of the
parties, sufficient for the purpose of complete justice. (Pa. St.)
Blair v. Supreme Council American Legion of Honor, 934.
ESTATES OF DECEDENTS.
See Executors and Administrators.
10G2 Index.
EVIDENCE.
JffisceUnnrouS.
1. EVIDENCE. — X-Ray Pictures are Admissible in evidence, in
an action for personal injuries, to show the condition of the interior
tissues of the injured member. (Neb.) Geneva v. Burnett, 628.
2. EVIDENCE of Absent Witness. — The testimony of a witness
given at a preliminary exaniination, with opportunity for cross-exam-
ination, is not admissible upon the subsequent trial merely upon
proof of the absence of the witness from the state. To make such
testimony admissible it must be shown that the witness is either
a nonresident or permanently absent from the state, or that he is
absent such a length of time as to make his return contingent and
uncertain. (Ala.) Sims v. State, 17.
3. EVIDENCE — Witnesses^Failure to Deny Statement. — The
fact that a witness did not deny a statement made in her presence
at a former trial and attributed to her is inconipotont as tending to
establish the falsity of her testimony in denyJTig suoli statement
given at a subsequent trial. (N. H.) Horan v. Byrues, 670.
Letters.
4. EVIDENCE.— A Letter from the chief engineer of the defend-
ant to plaintiff, a contractor, proposing a com.prniiiise to his clain!
for extra work is admissible in evidence as an admission, to the ex-
tent that it states certain facts are shown bv a remeasurement of
the work. (Ky.) Illinois Cent. K. R. Co. v. Manion, 3-15.
5. EVIDENCE. — If Parts of Letters arc introduced in evidence
by plaintiff, defendant is entitled to have the whole of the letters
read in evidence. (Ky.) Illinois Cent. E. K. Go. v. Manion, 345.
lies Gestae.
6. EVIDENCE — Res Gestae. — Declarations or statements made by
a person immediately after the injury is inilieted upon him, as an
intimately connected and natural result or detail thereof, in the pres-
ence of all the physical facts of the accident, are admissible as part
of the res gestae. (N. H.) Murray v. Boston etc. E. E., 660.
7. EVIDENCE — Res Gestae. — Declarations by an injured perscvi
as to tlio cause of the accident, made immediately thereafter, cannot
be excluded as part of the res gestate on the ground that tlu-y arc in
the form of a narrative, and made in answer to a question. (X. II.)
Murray v. Boston etc. E. E., 600.
Parol to Vary Writing'.
See Mortgages, 2,
8. EVIDENCE. — Receipts in Full are not conclusive that nothing
innro is due, but may be shown to be erroneous. (Ky.) Illinois
Cent. E. E. Co. v. Manion, 315.
9. CONTRACTS — Variance by Subseqent Parol Agreement.—
Though a written contract stipulates that "no comjx'nsation for
extra work, and no compensation for any work other than the com-
pensation herein stipulated shall be paiil unless ordered or agreed
to in writing," yet a recovery may be had for extra work done under
a suVisequent parol agreement to pay an agreed price therefor. (Ky.)
Illinois ''ont. E. E. Co. v. Manion" 345.
10. CONTRACTS — Variance by Parol. — Though parties to a con-
tract stipulate that it is not to be varied excej)! by an agreement in
Index. 1063
writing, they may, by a subsequent agreement, not in writing,
modify it by mutual consent, and the parol contract will be enforced,
unless forbidden by the statute of frauds. (Ky.) Illinois Cent.
K, K. Co. V. Manion, 345.
See Criminal Law; Homicide, 6, 7; Damages, 6, 7; Homicide, 7.
EXECUTIONS.
Curing and Amending.
1. EXECUTIONS, VOIDABLE — ^Amendment of. — Under a statute
providing among other things that a writ of execution must be is-
sued in the name of the state, sealed with the seal of the court, and
subscribed by the clerk thereof, the failure of the latter to affix the
seal of the court is a mere clerical error, which renders the execu-
tion voidable only and leaves it subject to amendment. (Mont.)
Kipp v. Burton, 544.
2. EXECUTIONS, VOIDABLE — Curative Statute. — A sale made
under an execution defective and voidable by reason of its failure
to contain the seal of the court, made prior to the enactment of a
statute providing that all judicial sales of real property previously
made on proceedings to satisfy valid judgments, shall be sufficient
to sustain a sheriff's deed based on such sale, is validated by suf'
statute, without amendment of such execution by the court. (Mont.)
Kipp V. Burton, 544.
Sales — Reversal of Judgment.
See Appeal and Error, 11-14; Attachment, 3.
3. EXECUTION SALE — Setting Aside After Reversal of Judg-
ment.— A rule to set aside a sheriff's sale taken after the payment
of the purchase money, the delivery and recording of the deed, and
the obtaining of possession by the purchaser, is too late; and it docs
not affect the question that the plaintiff in the execution is the pur-
chaser, and the judgment has been reversed. (Pa St.) Lengert v.
Chaninel, 931.
4. EXECUTION SALE — Reversal of Judgment— Restitution. — An
execution creditor who purchases at the sale is within the protection
of a statute providing that where land has been sold under a writ
issued upon a judgment afterward reversed, the land shall not be re-
stored, but there shall be restitution only of the money or price for
which the property was sold. (Pa. St.) Lengert v. Chaninel, 931.
Note.
Execution, amendment of, because of variance in amounts, 555.
amcnilment of, because of variance in names, 556.
amendment of, by affixing the seal of the court, 558.
amendment of, by supplying omitted words of coiuniaml, 555.
amendment of, clause of attestation, 556.
amendment of, discretion of the court to grant or refuse, 560.
amendment of, eft'ect of, 559.
amendment of, effect of not making, 561.
amendment of, in matters of form, 553.
amendment of, leave for, when may be granted in court other
than that in which the writ issued, 55.3.
amendment of, leave for will not be granted unless in further-
ance of justice, 551.
1064 Index.
Execution, amendment of, notice of application for, what and -when
to be given, 552, 553.
amendment of, persons against whom may be authorized, 561-563.
amendment of, power of is inherent in all courts, 552.
amendment of, power of, limitations upon, 551.
amendment of, practice to be pursued in procuring, 552.
amendment of, theory upon which directed, 552.
amendment of, time within which may be authorized, 558.
amendment of, to conform to the judgment, 554, 555.
amendment of, to supply the signature of the clerk, 557.
amendment of, when directed to the sheriff of one county, but
delivered to the sheriff of another, 554.
amendment of, with respect to the directions to the officer, 554.
amendment of, with respect to the return day, 55G.
EXECUTORS AND ADMINISTEATORS.
Probate Proceedings.
1. PROBATE COURTS — Jurisdiction.— The probate court in ad-
justing the accounts of executors, administrators, and guardians, has
equitable jurisdiction and may adopt equitable forms of procedure.
(III.) Heppe V. Szczepanski, 221.
2. PROBATE COURTS — Jurisdiction at Subsequent Term.— A
probate court has jurisdiction, at a subsequent term, to sot sisido an
order discharging an executor and approving his report reciting the
release of the widow's award, if such release was obtained by fraiul,
accident, or mistake. (111.) Heppe v. Szczepanski, 221.
3. PROBATE COURTS — Validity of Order Made at Subsequent
Term. — / probate court order made at a subsequent term settiiiLC
aside an order discharging an executor and releasing a widow "s
award, is void as to minor heirs in reviving the claim of the widow
and directing the sale of the minor's interests in land, if the only
showing of notice to the minors necessary to jurisdiction over thorn
is a recital in such order that they appeared by guar.lian ad litom,
whose appointment is not shown by the record. (111.) Heppe v.
Szczepanski, 221.
Sdlcs of Property.
4. JUDICIAL SAIiES— Heirs as Parties.— If a petition is fdod
by an administrator or executor for tlie sale of land to pay debts,
minor heirs must be made parties, and must be served with sum-
mons. (Til.) IIoppo V. Szczepanski, 221.
5. JUDICIAL SALES. — Service of Summons on Heirs in a pro-
coetling by an executor to sell real estate to pay debts by leaviiij;
a copy for tliem with the widow, their mother, and informing lH>r of
its contents is void wlien slie is the real, though not the nominal, poti-
tioncr, and is acting adversely to tlie interesU of such heirs. (111.)
liepjio V. .S/.fzopanski, 221.
6. JUDICIAL SALES — Service of Summons on Heirs. — If a 1 ill
is filed against minor heirs to subject their land to sale, the service
of summons on them by leaving a copy thereof with tlie complain-
ant, and informing him of its contents, will confer no jurisdiction
on the court, as to the person of such minors, and the decree of jule
rendered on such service is void as to them. (HI.) Heppe v.
Szczepanski, 221.
Index. 1065
7. ADMINISTRATOR'S SALE — Laches. — The Right to Question
the validity of a sale of a decedent's property, on the ground that
the administrator purchased thereat, may be barred by laches. (Neb.)
Shelby v. Creighton, 630.
8. WHERE AN ADMINISTRATOR Purchases Part of His De-
cedent's Property, a final order approving his accounts and dis-
charging him is conclusive on all parties of every matter involved,
including the validity of the sale. (Neb.) Shelby v. Creighton, 630.
FELLOW-SERVANTS.
See Master and Servant, 20-25.
FIXTURES.
FIXTURES — Mortgage Lien. — If machinery is purchased and
placed for use in a permanent building under a contract that it shall
remain the property of the seller, or, after such machinery is placed
in the building, a chattel mortgage is given by the purchaser to
the seller on such machinery, a prior real estate mortgage on the
building given by such purchaser is not a prior lien on such ma-
chinery so as to estop the chattel mortgagee from foreclosing his
mortgage. (Idaho.) Anderson v. Creamery etc. Co., 188.
FLIGHT OF ACCUSED.
See Criminal Law, 9.
FOREIGN CORPORATIONS.
See Taxation, 3, 4.
FOREIGN JUDGMENTS.
See Judgments, 6-8.
FORGERY.
FORGERY — Negotiable Instruments. — If a bank by mistake
infonns a person that it holds a deposit of money to his credit, and
the addressee requests a draft for the amount, and upon receiving
such draft indorses it, receiving the money, his indorsement does
not constitute forgery. (Utah.) Heavey v. Commercial Nat. Bank,
966.
FRAUDS, STATUTE OF.
1. STATUTE OF FRAUDS.— A Sale of Wild Grass growing upon
the vendor's land is within the statute of frauds, and a written con-
tract cannot be dispensed with. (Minn.) Kirkeby v. J^riekson, 411.
2. DEEDS, Parol Surrender of a Right to Redeem from a Deed
Absolute on Its Face. — When a deed absolute on its face is given
with a parol agreement that it is given and received as security for
a debt, the grantor may, by parol agreement, surrender his right of
redemption, and vest complete title in the grantee. (Iowa.) Baxter
v. Pritchard, 282.
3. HOMESTEAD — Oral Transfer in Consideration of Support. —
An oral agreement between a son and his parents that he shall, in con-
sideration of carrying on their business and providing for their support.
1066 Index.
become vested, upon their death, with the title to the family home-
stead, contravenes the statute of frauds and the statute of wills; but,
if fairlj' made and substantially performed by the son, equity may
grant him relief in case the parents repudiate the agreement. (Neb.)
Teske v. Dittberner, 614.
FEAUDULENT CONVEYANCTE.
FRAUDULENT CONVEYANCE— Bill to Set Aside Before
Judgment. — A creditor who attaches real estate as the property of
his debtor, after an alleged fraudulent conveyance thereof, can-
not, before reducing his claim to judgment, maintain a creditor's
bill to set aside the conveyance. (Cal.) Aigeltingcr v. Einstein,
131.
GAS.
See Confusion of Goods, 3.
GIFTS,
1. GIFT — The Acceptance of a Gift may be Presumed. (Pa. St.)
Sparks v. Hurley, 926.
2. GIFT of Stock by Transfer on Books. — A Husband may make
a gift of stock to his wife by a transfer of an account from his
name to hers, upon the books, although she does not know of it at
the time and docs not then accept it. (Pa. St.) Sparks v. Hurley,
926.
3. GIFTS. — Evidence that the Owner of Corporate Stock Deliv-
ered the Certificate Tliereof to another person, aeeomiianieil with
words declaring the donor's intention to make a gift to such person,
and that the stock was accepted and subsequently helde by such
donee, warrants a finding that the gift was absolute. (N. H.) Bond
v. Bean, 6S<3.
4. GIFTS— Evidence of Intention.— The fact that a certificate
of corj)(ir:ite stock is not in<lorse(l and assigned ))y the donor to the
donee does not render the gift of it incomplete, but is evidence bear-
ing upon tlie intention with which the donor made the gift, to 1 e
considered by the jury with the other evidence. (N. H.) Bomi v.
Bean, 6«6.
5. GIFT OF MONEYS on Deposit in Bank.— If the holder of a
l)ank-1 ook delivers it to another with an or<ler directing that the
amount due l,e paid to the latter, who afterward retains the posses-
sion of sneh book, this constitutes a gift of such amount. (N. Y.)
Matter of Barefield, 814.
GUARANTY.
1. GUARANTY is a Promise to answer for the payment of some
delit, or the performance of some duty, in case of the failure of an-
other person who is himself, in the first instance, liable to such pay-
ment or performance. (N. C.) Cowan v. Roberts, 845.
2. GUARANTY OF PAYMENT— Guaranty for Collection.— A
guaranty of payment is an absolute promise to pay a debt at maturitv
if not paid by the principal debtor, while a guaranty for collection
is only a promise to pay the debt upon condition that the guarantee
(liligentlv prosecutes the principal debtor for the recovery of the
debt without success. (N. C.) Cowan v. lioberts, 845.
Index. 1067
S. GUARANTY — Absolute.— The words "I do hereby guarantee
any debts" is an absolute, direct, and unconditional promise to an-
swer for the default of the principal debtor. (N. C.) Cowan v.
Roberts, 845.
4. GUARANTY — Consideration. — The promise of the guarantee to
furnish goods to the principal is sufficient consideration to support
the contract of guaranty. (N. C.) Cowan v. Roberts, 845.
5. GUARANTY — Absolute — Notice of Acceptance. — If an under-
taking is to guarantee any contract which may be made the obligation
is not collateral and contingent, but absolute and unconditional, and
no notice of acceptance is necessary. (N. C.) Cowan v. Roberts,
845.
6. GUARANTY. — Notice of Acceptance is not required when there
is a direct promise of guaranty. (N. C.) Cowan v. Roberts, 845.
7. GUARANTY — Fraud of Principal. — If a principal debtor agrees
to secure a second guarantor before delivery of the contract of guar-
anty, without the knowledge of the guarantee, but fails to do so, the
guarantor is still bound by his contract. (N. C.) Cowan v. Roberts,
845.
8. GUARANTY — Negligence of Guarantor. — Failure by the guar-
antor, for a long period, to notify the guarantee that the condition
of the delivery of the contract of guaranty has not been complied
with, during which time further credit has been extended, estops
the fTuarantor from taking advantage of the breacli of such condition.
(N. C.) Cowan v. Roberts, 845.
9. GUARANTY.— Burden of, Showing Lack of Diligence by the
guarantee in prosecuting the principal debtor so as to release the
Tuarantor, is upon the latter. (N. C.) Cowan v. Roberts, 845.
GUARDIAN.
See Infants.
HABEAS CORPUS.
See Criminal Law, 23.
HIGHWAYS.
1. HIGHWAY — Rights in, Acquired by Public. — By taking or ac-
cepting land for a highway, the public acquire only the right of
way, and the incidents necessary to enjoying and maintaining the
same, which incidents do not embrace the subterranean waters of
the road. (Cal.) Wright v. Austin, 97.
2. HIGHWAY — Percolating Water, Injunction Against Using. —
The public authorities may be enjoined, at the suit of the owner of
the fee, from taking the subterranean waters from a highway to
sprinkle it. (Cal.) Wright v. Austin, 97.
3. NEGLIGENCE — Proximate Cause. — If a hole in a liigliwny
gives a bii^ycle rider thereon an impetus which carries him over an
unrailed and dangerous embankment, to his injury, the lio](>, and
not the embankment, cannot, as matter of law. be regarded as the
cause of the injury. (X. H.) Hendry v. North Hampton, (iSl.
4. MUNICIPAL CORPORATIONS— Defective Highway.— If a
town allows' an embankment along a higliway therein to remain in
an unrailed and dangerous condition, it is liable to a bicycle rider
1068 Index.
who, without fault on his part, is injured thereby. (N. H.) Ilendrj
V. North Hampton, 681.
5. HIGHWAYS — Defects in. — A bicycle rider injured by reason
of a defect in a highway, consisting of an unrailej and dangerous
embankment, rendering it unsuitable for ordinary travel, is entitled
to recover for an injury received thereby. (N. H.) Hendry v.
North Hampton, 6-81,
Sec Easements.
Note.
Highways, abandonment or vacation of, abutting property owners
may object to, 117.
abandonment or vacation of, rights of abutting jiroperty owners
after, 117.
additional uses to which property owners need not submit, 109,
110.
adjacent property owners are prima facie entitled to middle of,
104.
adverse possession of, title of the owner of the fee may be
devested by, 105.
abutting property owner has no right to frighten horses upon,
108.
abutting property owner, is entitled to lateral support from, 110.
abutting property owner, rights of in, 106-117.
abutting property owner, right of to maintain actions for ob-
structing, 109.
covenant of seisin is not broken by, 105.
deviations from to avoid obstructions, etc., in, jiroperty owner
must submit to. 111.
drainage, abutting property owner may use for the purposes of,
115.
easements which the public has in, 105.
ejectment by abutting property owners for lands covered by, 117.
freehold of, in whom remains, 103, 104.
gates across, right of land owners to maintain, 108.
grants of land as bounded by, construction of, 104.
grass growing in belongs to the owner of the abutting property:,
111.
injunction to protect rights of abutting property owners in, 117.
minerals in belong to the owners of the abutting property, 111.
nuisances in, suits by abutting property owners to abate, 11 S.
nuisances in, which an abutting property owner has the right to
abate, 110.
obstructions upon, remedy of property owners for, ]09, 110.
obstructions upon, rights of property owners ti remove, 109.
ownership in property covered by which is retained by the land
owner, 10.3.
ownership of the public in the lands covered by, 103.
])asturage of stock upon, who entitled to, 112.
private persons may not use for private purposes against tho
will of the owner of the fee, 105, 106.
private purposes, extent to which land owner maj' apply to, 107.
Remedies of abutting property owners for invasion of their
rights in, 117, 118.
rights in of the owner of the land covered by, 106.
seTvitudes, additional upon, what are, 110.
soil, gravel, etc., right of the public to use, 115.
Index. 1069
Highways, timber on, right of the public to use, 116.
trees and shrubs, right of abutting property owners to plant in,
113.
trees and shrubs upon, damages for cutting of by road overseers,
113.
trees and shrubs upon, right of telegraph and telephone corpora-
tions to trim, 112, 113.
trees and shrubs upon, title to is in the abutting property own-
ers, 112.
trespass, action of by abutting property owners for injuries to
property in, 117.
trespassers on property covered by, remedy of the land ownei
for, 105.
watercourses, abutting property owners should not be shut off
from by, 114, 115.
waters in, right to the use of, 114.
HOLIDAYS.
LEGAL HOLIDAYS. — Ministerial Acts by public officers may
proporly be performed on legal holidays, in the absence of express
statutory prohibition, and statutes prohibiting judicial acts on such
days do not apply to such as are merely ministerial. (Idaho.)
Havens v. Stiles, 195.
See Sunday.
HOMESTEADS.
In General.
1. HOMESTEADS — Estate in Land. — A homestead is an estate
in land, and not merely an exemption; and when the interest of the
homesteader does not exceed in value the statutory limit, the home-
stead estate comprises his entire title, leaving no interest to which
liens can attach or which he can convey separately. (111.) Eoberson
V. Tippie, 217.
2. HOMESTEADS — Basis of Estate. — A homestead estate is
based upon the title of the homesteader, and can have no separate
existence independent of the title which constitutes one of its es-
sential elements and from which it is inseparable. (111.) Eoberson
V. Tippie, 217.
3. HOMESTEADS— Descent of.— Upon the death of the home-
steader, the homestead estate by operation of law devolves upon the
surviving husband or wife for life and upon their child or children
during the minority of the youngest, and the heirs at law take a re-
versionary interest only, expectant upon the termination of the es-
tate for life or for years created by the statute. (111.) Eoberson v.
Tippie, 217.
Sales and Leases.
See Frauds, Statute of, 3.
4. HOMESTEADS — Conveyance of— Husband and Wife.— The
statutory provision declaring that no conveyance of the homestead
shall be valid unless in writing, subscribed by the homesteader and
his wife applies to deeds made by a husband to his wife, and there-
fore a conveyance of a homestead, not exceeding the statutory value,
by a husband to his wife, she not joining therein, is absolutely voiJ
and passes no title. (HI.) Eoberson v. Tij)pie, 217.
1070 Index.
5. HOMESTEADS — Conveyance of — Husband and Wife. — The
amount paid by a wife as a consideration for the conveyance of a
homestead to her by her husband, in which she does not join, as
required by statute, is not a lien, in law or equity upon the land
attempted to be conveyed. (111.) Koberson v. Tippie, 217.
6. HOMESTEADS — Lease of — Consent of Wife. — A husband,
without consent of his wife, may lease the homestead lands for pur-
poses not interfering with the use of the property as a homestead; but
ho cannot do so when the lease interferes with such use. (Ala.)
Millikin v. Carmichael, 29.
7. HOMESTEADS — Lease of— Consent of Wife.— A husband
alone, and without the consent of his wife, may lease the premises
constituting their homestead for the turpentine privilefjes thoreon,
with right of ingress and egress for the purposes of the lease.
(Ala.) Millikin v. Carmichael, 29.
HOMICIDE.
Dcyrccs of Murder.
1. CRIMINAL LAW — Instructions Defining Degrees of Murder. —
On a prosecution for murder, it is not error to repeat instructions de-
fining murder in the first and second degrees, on the ground that they
tend to intensify the crime as murder, when the only purpose or
effect of such instructions is to more fully point out the distinction
between the two different degrees of murder. (Wash.) State v.
Clark, 1006.
2. CRIMINAL LAW — Murder — Sufaciency of Evidence. — A con-
viction of murder in the first degree must stand, when the circum-
stances show that there can be no possible doubt that the defendant
did the killing through jealousy, although no one saw it done, and
when there is no evidence of his insanity, set up as a defense, except
his own statement that he did not know what he was doing at the
time, and the statement of witnesses that he "looked wild" and
"acted nutty." (Wash.) State v. Clark, 1006.
ImVirtment and hiformatUtn.
3. MURDER. — Information for Murder nood not expressly allege
an intent to kill. (Mont.) State v. Kccrl, 579.
4. MURDER. — Information for murder must directly allege that
ili-:ilh rcsiilti'il Irniii till' mortal wmiini nv vvuuuils iufiicted by the
defendant. (Mont.) State v. Keerl, 579.
5. MURDER. — Information for murder which is defective in in-
sufiieiently alleging the cause of death is not cured by a concluding
allegation that "so the said defendant did kill and murder the said
deceased." (Mont.) State v. Keerl, 579.
Evidcncr.
6. HOMICIDE — Evidence that Deceased Carried Weapon. — On a
murder trial, it is not competent to prove by a witness other than
the accused that the deceased was iu the habit of carrying a pistol,
unless such fact is traced to the knowledge of the accused. (Ala.)
Sims V. State, 17.
7. HOMICIDE — Expert Evidence as to Character of Wound.—
A physician who attended the deceased after ho had received the
wdiind which caused his death, is competent to state his opinion as
^'i whether or not the wound was fatal. (Ala ) Sims v. State. 17.
Index. 1071
mJSBAJSTD AND WIFE.
Wife's Separate Property.
1. HUSBAND AND WIFE— Wife's Separate Property.— If a
married woman living with her husband, takes a half interest in a
contract to work a mine on shares, hires a man to do half the work,
and pays him out of her share of the clean-up, while she personally
supervises the work, the net profits of her mining enterprise are
her separate property, under a statute exempting property ac-
quired by a married woman "by her own labor," from the debts or
contract liabilities of her husband. (Wash.) Elliott v. Hawley, 1016.
2. HUSBAND AND WIFE— Wife's Separate Property— Partner-
ship Property. — If money acquired by a married woman in one state
as a member of a partnership, there becomes her separate property,
and is brought into another state and deposited as the funds of such
partnership, her share thereof remains her separate property, and real
estate there purchased by her and paid for by a check of such partner-
ship, in a sum less than her share of such deposit, is not subject
to her husband's separate debt. (Wash.) Elliott v. Hawley, 1016.
3. HUSBAND AND WIFE— Wife's Separate Property.— Restric-
tions Against Partnerships formed by husband and wife are intended
only to protect the wife against her husband's separate debts, and
not to deprive her of her separate property. (Wash.) Elliott v.
Hawley, 1016.
4. HUSBAND AND WIFE— Wife's Separate Property— Commin-
gling of Funds. — If the amount of money invested by husband and
wife in a joint enterprise is definite as to the amount advanced by
each, and yields a definite income or increase, there is no such
commingling of their separate property, as to cause it to lose its
identity. (Wash.) Elliott v. Hawley, 1016.
Wife's Power of Sale.
5. MARRIED WOMEN — Power of Sale of Land — Execution of,
Without Joinder of Husband. — If a testator, by his will, devises all
his property to his wife, "during her lifetime, to manage at her con-
trol, or as she may think best, for herself and her children, in future,
to contract debts and pay them out of the property as she may deem
expedient, or to sell off the property as she thinks proper during her
lifetime, and at her death" the remaining property to be sold and
the proceeds divided amongst his children, he thus confers upon her
power to dispose of the property in fee, which she may do by deed
without the joinder of her then husband. (Ala.) Young v. Sheldon,
44.
6. MARRIED WOMEN— Execution of Power of Sale— Joinder ol
Husband. — A married woman may, without the assent or concurrence
of her husband, execute a power conferred upon her to dispose of
lands in fee by executing her sole deed thereof. (Ala.) Young v.
Sheldon, 44.
See Gifts; Homesteads, 4-7.
IMPUTED NEGLIGENCE.
See Negligence, 5, 6.
INCEST.
1. CONSTITUTIONAL LAW— Incest.— A statute defining incest,
without including actual Knowledge on the part of the defendant of
1072 Index.
his relation to the particepa criniinis as a necessary element of guilt,
is not unconstitutional. (Wash.) State v. Glindemann, 1001.
2. CEIMINAIi LAW— Incest— Information— Scienter.— If a stat-
ute upon incest is silent as to any scienter, not using the words
"knowingly," "willfully," or the like in describing the offense, it
is not necessary to allege or prove that the defendant knew the re-
lationship existing between him and the particcps criminis. (Wash.)
State V. Glindemann, 1001.
3. CRIMINAL LAW — Incest — Defense of Insanity— Evidence.—
If the defense of insanity is set up to charge of incest, the exclusion
of the record of the appointment of a guardian for the defendant as
being of unsound mind is not error if the record of the actual ad-
judication of his insanity made just prior to the guardianship pro-
ceeding has already been admitted in evidence. (Wash.) State v.
Glindemann, 1001.
INDEPENDENT CONTRACTOE.
See Master and Servant, 26.
INDICTMENT.
See Homicide, 3-5.
INFANTS.
ACTIONS— Parties — Suit for Infant. — If suit is prosocutod for
an infant, it must run in the name of the infant, as plaintiff, by its
guardian or next friend, and not in the name of the guardian or next
friend for the infant. The infant is the real plaintiff. (Mo.)
Jones V. Kansas City etc. R. E. Co., 434.
See Adoption; Master and Servant, 1.
INHERITANCE TAX.
See Taxation, 3, 4.
INJUNCTIONS.
In Gcncrnh
1. INJUNCTIONS — Jurisdiction to Issue. — Courts of equity alone
have power to issue injunctions, and they never exercise this power
to allav mere apprehensions of injury, but only when the injury is
imminent and irreparable. (Mo.) Schubach v. McDonald, 452.
2. INJUNCTION — Jurisdiction — Writ of Prohibition. — If the
court has jurisdiction over the subject matter, it has the power to
decide whether a petition for an injunction does or does not state a
cause of action; and the mere failure of the petition to state a caus<'
of action, or the defective statement of a good cause of action in
no wav affects the jurisdiction of the court, or justifies the issue of a
writ of proliihition to prevent it from acting. (Mo.) Schubach v.
Mr Donald, 452,
Tickrt Brokrrfi.
3. INJUNCTION Against Ticket Brokers.— Ticket brokers who
assert a right to buy an<l sell nontransferable railroad tickets, issued
and to be issued, notwithstanding their terms, and notwithstandinji
Index. 1073
the fact that the original purchaser can confer no rights upon any-
one thereunder, thereby threaten to invade an existent property
right of the railroad, which owing to the insolvency of the brokers
and the nature of their business, will work irreparable injury to the
railroad, and this entitles it to an injunction to prevent such brokers
from so doing. (Mo.) Schubach v. McDonald, 452.
4. INJUNCTION Against Railroad Ticket Brokers.— There is an
existent controversy concerning a legal subject matter between live
parties presented for adjudication and within the jurisdiction of the
court, where a petition for an injunction, together with the return
of the rule to show cause, show that defendant ticket brokers have
in their possession and intend to buy, and assert a property right
in nontransferable tickets issued by a railroad company, and sold or
to be sold to such brokers by original purchasers and which such
brokers threaten to sell to others. (Mo.) Schubach v. McDonald,
452.
5. CONSTITUTIONAL LAW— Injunction Against Railroad Ticket
Brokerage. — A court in granting an injimction restraining ticket
brokers from buying and selling nontransferable railroad tickets, is-
sued and to be issued, does not infringe upon the powers nor invade
the province of the legislature. (Mo.) Schubach v. McDonald, 452.
6. INJUNCTION Against Ticket Scalping — Jurisdiction — Con-
crete Case. — A petition for an injunction against ticket b.-okers re-
citing that certain excursion tickets, mileage tickets and eoinniuta-
tion tickets have been issued, or will be issued, from tims to time
by a railroad company, based upon a consideration of redu led rates,
which by their express terms are to be good only in the hards of the
original purchaser, and that it will be impossible, impracticable, or
at any rate unbearably inconvenient, for the original purchaser to
be identified and have the return ticket stamped, or for the train
conductors to determine whether the person attempting to ride on
such return ticket is the original purchaser or not; that it would be
a fraud upon the railroad for anyone, except the original purchaser,
to ride upon such return tickets, and a fraud for the original pur-
chaser to sell such return tickets to the ticket brokers, and for such
brokers to sell such return tickets to any third person to be by him
so used, or upon the representation that they would entitle the buyer
to so ride thereon; that, in the nature of things, the railroad could
never ascertain that such frauds were about to be committed until
after trains had departed and such tickets were presented to train
conductors, and that it would then be too late to ask for or to receive
injunctive relief against the perpetrators of sucli frauds, and that
the ticket brokers are insolvent so that no adequate remedy at law-
could be had against them, and further, that even if such frautls
could be discovered in time to ask specific relief in each case, it
would involve the prosecution of a multiplicity of suits, and pray-
ing for an injunction to restrain tiekot ])rokers from buying, selling,
or^dealinc^ in such nontransferable tickets, states a concrete case as
to tickets then held by ticket brokers, and presents a live subject
matter between live parties, which gives the court power and .luns-
diction to issue the injunction, and a writ of prohibition will not
lie to prevent the court from acting and issuing such injunction.
(Mo.) Schubach v. McDonald, 452.
7. INJUNCTION Against Tickets Scalpers— Petition to Confer
Jurisdiction.— A petition bv a railroad company for an injunction
asainst a ticket broker to restraiu him from dealing in spocial tickets,
which recite upon their face that they are issued at reduced rates
Am. St. Kep., Vol. 101— GS
1074 Index.
and are nontransferable, but which do not relate to any particular
occasion, states a concrete case which a court of equity has jurisdic-
tion to hear and decide, and a writ of prohibition will not issue
against it. (Mo.) Schubaeh v. McDonald, 452.
See Highways, 2.
INSANE PERSONS.
1. CONTRACTS of Insane Persons. — Idiots and persons of non-
sane memory are not totally disabled either to convey or purchase, but
sub modo only, for their conveyances and purchases are voidable,
but not actually void. (N. Y.) Blinn v. Schwarz, 806.
2. INSANE PERSONS. — The Deed of a Liinatic Before Office
Found is voidable only, and not void. (N. Y.) Blinn v. Schwarz,
806.
3. INSANE PERSONS. — The Deed of an Insajie Person May be
Ratified by Him if it was made while he was insane, and his agent,
under a power of attorney, also executed during the insanity, received
the consideration, and the principal, after becoming sane, sued such
agent for an accounting and inserted allegations in the complaint
which would have permitted a recovery of the money received by the
agent for the conveyance. Though it does not appear by the com-
plaint or otherwise that the principal knew when the action was
brought that his agent had received such moneys, still this casts the
burden of proof on such principal in an action of ejectment to re-
cover the land so conveved, and requires him to show that he did not
ratify the conveyance after the termination of his insanity. (N. Y.)
Blinn v. Schwarz, 806.
See Criminal Law, 1-8.
INSTRUCTIONS.
See Criminal Law; Trial, 3-8.
INSURANCE.
Employer's Indemnity.
1. INSURANCE — Employer's Indemnity. — If a policy of employ-
er's liability insurance provides that if suit is brought against tlie
assured to enforce a claim on account of an accident covered by the
policy, the insurer will, on notice thereof, take charge of the litiga-
tion in the name and behalf of the insured, or settle it at its own
cost, unless it elects to pay to the insured the indemnity, the assured
being forbidden to settle any claim or incur any expense without
the insurer's written consent, and the policy, also providing that
no claim shall lie against the insurer under the policy, unless brought
liy the insured to reimburse him for loss actually sustained and paid
by him in satisfaction of a judgment, the insurer, after taking con-
trol of proceedings in a suit against the assured, who is insolvent,
cannot be discharged of liability, except by payment of the indem-
nity, or a settlement of the plaintiff's claim reduced to judgment.
(X. H.) Sanders v. Frankfort Marine etc. Ins. Co., 688.'
2. INSURANCE — Employer's Indemnity.— If a policy of em-
ployer's lial)iIJty insurance provides that no claim shall lie against
the insurer on the policy unless brought by the assured to reimburse
him for loss sustained and paid by him in satisfaction of a judg-
ment, and that if the insHred shall take control of proceedings in
Indbjx. 1075
an action to enforce a claim arising under the policy, he shall either
pay the indemnity or secure the discharge of the insured, equity has
jurisdiction to compel the insurer to pay the amount of tiie insurance
in satisfaction of a judgment obtained by an employ^ against the
insured, if the insurer has taken control of the proceedings as pro-
vided for in the policy, and has continued them to final judgment,
though the insured was then insolvent and unable to pay such judg-
ment, had made no claim for the insurance, and had incurred no
expense nor made any payment on account of the litigation. (N. H.)
Sanders v. Frankfort Marine etc. Ins. Co., 688.
Fire Insurance.
3. INSURANCE— Waiver of Proof of Loss. — Denial of liability
by an insurer for a loss by fire constitutes a waiver of proof of such
loss. (Ky.) Home Ins. Co. v. Koob, 354.
4. INSUHANCE, FIRE— Condition Against Other Insurance —
Owner and Mortgagee. — If an owner of property accepts a policy of
fire insurance thereon, containing a condition that it shall be void if
other insurance is taken on the insured property, the fact that the
mortgagee of such property subsequently takes other insurance on
his interest does not avoid the owner's insurance, especially when
neither knew that insurance had been procured by the other.
(Ky.) Home Ins. Co. v. Koob, 354.
5. INSURANCE, TIRE — Misrepresentation — Burden of Proof. —
In the absence of fraudulent intent, the burden of proof is on an
insurer to show that a misrepresentation by the insured as to the
amount he owed on a mortgage on the property insured was material
to the risk. (Ky.) Home Ins. Co. v. Koob, 3^4.
6. INSURANCE, FIRE — Other Insurance — Contribution. — If an
owner and a mortgagee of the same property have procured insurance
on their separate interests therein, and the owner seeks to recover
on his policy, the defendant insurer is not entitled to contributio'i
against the insurer of the mortgagee's interest. (Ky.) Home Ins.
Co. V. Koob, 354.
Life Insurance.
7. INSURANCE, UFE— Insurable Interest.— Insurance procured
by one person upon the life of another in which ho has un insnrahk!
interest, is against public policy and void as a wager contract. (X.
H.) Mechanieks Nat. Bank v. Comins, 650.
8. INSURANCE, LIFE— Insurable Interest.— Any reasonable ex-
pectation of pecuniary benefit or advantage, either directly or indi-
rectly, from the continued life of another, creates an insuralile in-
terest in such life, though there may be no claim upon the person
whose life is insured that can be recognized in law or in equity.
(N. H.) Mechanieks Nat. Bank v. Comins, 650.
9. INSURANCE, LIFE — Insurable Interest. — Insurance upon the
life of the manager of a corporation, procured by one who furnishes
funds to carry on the business, is not voiil for want of an insurable
interest. (N. H.) Mechanieks Nat. Bank v. Comins, 650.
10. INSURANCE, LIFE— Insurable Interest— Assignment. — A
policy of life insurance valid in its inception may be assigned to one
having no insurable interest in the life insured, if the assignment is
bona fide and not a device to evade the law airainst wager policies.
(N. H.) Mechanieks Nat. Bank v. Comins, 650.
1076 Index.
11. INSURANCE, LIFE — Waiver of Conditions— Assignment.— A
provision in a policy of life insurance that any claim thereunder by
an assignee shall be subject to satisfactory proof of interest in the
life of the insured is for the protection of the insurer, and waived by
a formal admission of liability and payment of the money due into
court, and is not available to one who asserts a claim to the proceeds
of the policy adversely to an assignee thereof. (N. H.) Mechan-
icks Nat. Bank v. Comins, 650,
Murder of Insured.
12. BENEFIT SOCIETIES— Murder of Insured.— Although the
beneficiary named in a certificate of a benefit insurance society, who
murders or feloniously takes the life of the insured, cannot recover
the benefit from such society, yet this does not release it from the
payment of such benefit to anyone, in the aVjsence of a contract pro-
vision to that effect. (111.) Supreme Lodge etc. v. Menkhausen,
239.
13. BENEFIT SOCIETIES — Murder of Insured.— Heirs at Law
of an insured member of a benefit society, who is murdered by the
named beneficiary are entitled, when named by statute, as within
the class of eligible beneficiaries, to recover such insurance, nothing
to the contrary appearing in the contract of insurance, or in the state
law. (111.) Supreme Lodge etc. v. Menkhausen, 239.
14. BENEFIT INSURANCE— Parties to Action to Recover.— If
the statute determines the persons entitled to the insurance on the
life of a murdered member of an insurance benefit society, suit to
recover such benefit is properly brought in the names of such per-
sons, and need not be broiifrht by the administrator of the estate of
the deceased member. (111.) Supreme Lodge etc. v. Menkhausen,
239.
Mvtvfil Benefit JvRvrnnee.
15. BENEFIT SOCIETY— Relation to Members. — A benefit
societv sustains a relation to its nicinljcrs other than that of a
mere "life insurance coin])any; the fund raisiMl is prac-tically a trust
fund made up of their contributions. (I'a. St.) Blair v. Supreme
Council etc., 934.
16. BENEFIT SOCIETY — Payment of Less than Face of Certifi-
cate.— Tf a widow ])roseiits her husl)and's death certificate of five
thousand dollars to a benefit society for payment, without knowledge
that after the issuance of the certificate it had been enacted by by-
laws that two tliousand dollars should be the highest amount paid
upon any death, and surrenders the certificate and accepts nineteen
hundred dollars on the representation that this is all she is entitled
to, she may maintain a bill in equity against the society to_ compel
the return of the certificate, to make discovery of the condition of
tTie emertrency fund, and to pav the face of the certificate, less the
amount already received. (Pa.' St.) Blair v. Supreme Council etc.,
934.
INTEREST,
See I'sury,
IRRIGATION.
See Eiiiiuent Domain; Taxation, 2; Waters and Watercourses, 1-3.
Index. 1077
judgments.
In General.
1. JUDGMENT-ROLL.— The Order for Publication of Summons
is no part of the judgment-roll. (Cal.) McHatton v. Rhodes, 125.
2. JUDGMENT as Evidence Pending Appeal.— If a defendant
appeals from a judgment before a sheriff's deed is made to the plain-
tiff, or a sale made by him to a third person, the effect of the judg-
ment as evidence of the matters determined by it is suspended, even
though its execution ia not stayed. (Cal.) l)i Nola v. Allison. 84.
Jurisdiction.
3. JUDGMENTS— Presumption of Jurisdiction.— A recital of due
service of process in a judgment by a superior court raises a pre-
sumption of a valid service, and a person attempting to avoid such
judgment must show that no legal service was made. (Wash.) Bal-
lard V. Way, 993.
4. JUDGMENT — Presumption as to Publication of Summons. —
If a judgment of a sister state recites that the defendants were duly
notified by publication more than tliirty days before the first day of
the term of court, it must be presumed that an order was made for
the publication, and that notice wns given as the law of that state
provides. (Cal.) McHatton v. Ehodes, 125.
5. JUDGMENTS of Justices of the Peace — Jurisdiction Based on
Forgery. — When a contract as sued upon contains a stipulation mak-
ing it payable at a specified place, which stipulation, if genuine, would
give the justice of the peace at that place jurisdiction, and it is
there sued upon and judgment rendered by default, such judgment is
void if such stipulation was in fact a forgery, being added to the
contract after its execution without the authority of the maker.
(Iowa.) Cooley v. Earker, 276. r
Foreign Judgments.
'6, JUDGMENTS— Foreiga— Collateral Attack. — A judgin(Mit of a
court of another state is conclusive against collateral attack as to
whether the complaint was such as to warrant a personal judgment.
(Iowa.) American Trading etc. Co. v. Gottstein, 319.
7. JUDGMENTS — Foreign. — A Demurrer to a petition alleging
that a personal judgment was entered by the court of another state
in conformity with the law thereof, is an admission for the purpose
of deciding on the merits of the demurrer, that such judgment was
warranted by the pleadings. (Iowa.) American Trading etc. Co.
V. Gottstein, 319.
8. JUDGMENT Against Nonresident — Jurisdiction. — The Pre-
sumption of verity attending the decision of a court of ^ener:il
jurisdiction on the question of its jurisdiction applies to a judg-
ment of a sister state obtained against nonresidents by publication,
although the order for publication docs not appear in the record.
(Cal.) McHatton v. Rhodes, 125.
Personal and Deficiency Judgments.
9. JUDGMENTS — Pleadings in Equity.— Prayer for general re-
lief in a complaint in equity will sustain a personal judgment.
(Iowa.) American Trading etc. Co. v. Gottstein, 319.
10. JUDGMENTS — Deficiency — Personal Judgment.— A judgment
determining the amount due, establishing a lieu and decreeing a
1078 Index.
sale of property to pay the debt, and directing a holding of the sur-
plus, until the further order of the court, is not a final, but an iuter-
locutory, judgment, and, in case of deficiency, a personal judgment
may be rendered therefor by subsequent decree. (Iowa.) Ameri-
can Trading etc. Co. v. Gottstein, 319.
Res Judicata and Estoppel.
11. JUDGMENT — Estoppel Extends to Premises. — If a judgment
is necessarily drawn from certain premises, they are as conclusive
as the judgment itself. (Neb.) Shelby v, Creighton, 630.
12. JUDGMENTS — Ees Judicata. — The decision on appeal from an
order continuing until the time of the hearing of an injunction re-
straining trespass, as to the effect of a judgment in another action
and subsequent partition proceedings is not the law of the ease, so as
to be conclusive on appeal from the final judgment in the trespass
suit. (N. C.) Carter v. White, 853.
Vacation and Relief.
13. JUDGMENT — Vacation for Fraud and Imposition. — A suit in
equity to set aside a decree for fraud and imposition cannot be main-
tained where the evidence fails to show that the plaintiff was not
as fully cognizant of the manner in which the decree was obtained
at the time of its entry as she was when the suit for relief was
commenced. (Neb.) Shelby v. Creighton, 630.
14. JUDGMENT, Relief from in Equity— Laches. — A party can-
not be denied relief from a void judgment, because of laches, where
there has been no attempt to enforce it, because, until then, the com-
plainant had no occasion to act. (Iowa.) Cooley v. Barker, 276.
15. JUDGMENT, Relief Against, Though It is Shown that the
Defendant was not Indebted. — In a suit to enjoin the enforcement
of a judgment on the ground that it is void, the complainant is not
required to show that he is not indebted on the cause of action which
was the basis of the suit. (Iowa.) Cooley v. Barker, 276.
See Appeal and Error, 11-14; Partition.
JUDGMENT-ROLL.
See Judgments, 1.
JUDICIAL SALE.
See Appeal and Error, 11-14; Executions, 3, 4; Executors and Ad-
ministrators, 4-8.
JURISDICTION.
See Judgments, 2-8,
JURY.
JURORS — Examination as to General Qualifications — Waiver.
In a criminal prosecution it is not error to fail to require the prose-
cuting attorney to examine the jurors as to their general qualifica-
tions. Either the prosecutor or the defendant may waive his right
Index. 1079
to so examine the jiirora, or waive any disqualification in any juror.
(Wash.) State v. Clark, 1006.
See Criminal Law, 19, 20.
JUSTICE OF PEACE.
See Judgments, 5.
LABOR LAWS.
See Constitutional Law, 6-8.
LAKES.
See Waters and Watercourses, 4, 5.
LANDLORD AND TENANT.
LANDLORD AND TENANT— Returning Premises in Good
Order. — A provision in a lease that the tenant shall return the prem-
ises in as good condition as when received, "loss by fire, inevitable
accident, or ordinary wear excepted," obligates the tenant, upon the
termination of the lease by agreement after a fire, to remove the
debris and rubbish resulting from the partial burning of his goods.
(Minn.) Boardnian v. Howard, 409.
Xote.
Larceny, possession of recentlv stolen property as evidence of, 482,
485, 492.
LEASE.
See Landlord and Tenant.
LETTERS.
See Evidence, 4, 5.
LIBEL AND SLANDER.
1. NEWSPAPER LIBEL.— The Proprietor of a Newspaper is
Liable for All that Appears in Its Columns, although the publication
may have been made in hig absence and without his knowledge. (N.
Y.) Crane v. Bennett, 722.
2. LIBEL — Evidence of Malice. — The falsity of a libel is suffi-
cient evidence of malice. (N. Y.) Crane v. Bennett, 722.
3. LIBEL — Malice — Exemplary Damages. — Though Defendant
Testifies and Produces Evidence Tending to Show that there was No
Actual Malice, yet if the plaintiff proves the publication of tlio libel
and that it is false, the judge should submit to the jury, as a ques-
tion of fact, whether malice existed in the publication, and if the jury
is of the opinion that it did exist, exemplary damages mav bo
awarded. (X. Y.) Crane v. Bennett, 722.
4. DAMAGES, EXEMPLARY, for Act of a Servant or Employe.
When the proprietor of a newspaper surrenders to his general man-
ager and employes all his business affairs or the general management
of some particular business, and absents himself from the jurisdiction
1080 Index.
where his paper is edited and published, leaving such manager in en-
tire charge thereof, the proprietor is responsible for the manner in
•which his business is conducted, and if a libelous publication is
wanton, reckless, or heedless of the feelings of the person libeled,
and, upon being apprised of the recklessness of the charges, there is
a continued refusal to make or publish any retraction, such proprietor
is liable for such punitive damages as the jury in its discretion may
award. (N. Y.) Crane v. Bennett, 722.
Note.
Libel, damages, exemplary for though due to the act of a servant,
753-760.
malice in publication of, when imputed to the proprietor of
a newspaper, 758.
retraction of, refusal to publish, 758, 759.
LICENSE TAX.
See Municipal Corporations, 3.
LIFE ESTATES.
See Adverse Possession.
LIMITATION OF ACTIONS.
1. STATUTES of Limitation furnish a dofenso as meritorious as
any other. (Ala.) Nelson v. First Nat. Bank, 52.
2. PLEADINGS — Amendment — Plea of Limitation. — An amend-
ment to a complaint, in order to come within the doctrine of relation
back to the coniniencement of the suit, and cut off the plea of the stat-
ute of limitations, must be but a varying form or expression of the
claim or cause of action sued on, and the subject matter of the
amendment must be wholly within the lis pendens of the original suit.
(Ala.) Nelson v. First Nat. Bank, 52.
3. PLEADINGS— Amendment — Plea of Limitation. — If the mat-
ter introduced by way of amendment to a complaint, although it
be such as might have been joined in a different count in the original
complaint, introduces a new claim, or a new cause of action, requir-
ing a different character of evidence for its support, and affording 9
different defense from that to the cause as originally presented, it
will not relate back to the commencement of th suit, so as to pre-
vent the plea of the statute of limitations to the new matter thus
introduced. (Ala.) Nelson v. First Nat. Bank, 52.
4. PLEADINGS — Amendment — Plea of Limitation. — Plaintiff
may introduce a new cause of a<'tion, or a new right or claim arising
out of the same transaction, by amendment to his complaint, but
such amendment cannot have relation back to the commencement of
the suit, so as to avoid the bar of the statute of limitations, if the
statute would ojieratc as a bar to a new suit commenced for that
cause of action at the time of making such amendment. (Ala.)
Nelson v. First Nat. Bank, 52.
5. PLEADINGS — Departure by Amendment — Plea of Limitation.
In determining whether an amendment to a complaint asserts new
mrittcr fur ;i now claitn, and relates back to the coiiiiiiencei)icnt of the
suit so ns to cut off the plea of the statute of limitations, the true
Index. 1081
test is whether the matter set up in the amendment amounts to a
departure in after pleading, and if it does, the amendment cannot
thus relate back. (Ala.) Nelson v. First Nat. Bank, 52.
6. PLEADING — Departure by Amendment — Plea of Limitation.
A complaint setting up a claim for money had and received, and by
amendment setting up a claim for goods sold and delivered, growing
out of the same transaction, presents a departure in after pleading,
and such amendment cannot relate back to the time of the com-
mencement of the suit, so as to cut off the plea of the statute of
limitations as to the matter set up in such amendment. (Ala.) Nel-
son V. First Nat. Bank, 52.
See Adverse Possession; Counties; Municipal Corporations, 9.
Note.
Limitation of Actions, adoption by courts of equity of statutes re-
lating to, 146.
applies in favor of the state or government, 149.
construction of statutes of affecting states or governmental
bodies, 166-169.
counties, whether subject to statutes imposing, 154, 156.
difference between and the doctrine of laches, 146.
foreign governments, whether bound by statutes imposing, 158.
general words in do not apply to the government nor to govern-
mental agencies, 166, 167.
in actions by the state to protect private rights, 172.
in actions by the United States on claims assigned to it, 183.
in actions on official bonds, 186, 187.
in actions to recover public funds, 185.
in actions to recover taxes, assessments, etc., 185.
in actions where the United States does not sue for a govern-
mental right, 181, 183.
in actions where the United States is a nominal, but not a real,
party in interest, 170.
in quo warranto proceedings, 187.
in suits by municipal corporations to recover taxes, 180.
in suits by the sovereign based on ordinary business transac-
tions, 184.
in suits to escheat property, 188.
in suits to restrain public nuisances, 187.
in suits to set aside patents to public lands, 187.
maxim, "Nullum tempug occurrit regi, " purposes of, 146, 147.
municipal corporations, whether bound by statutes imposing,
157.
municipal corporations, whether affected by when assuiuin" to
protect a public right, 157, 175-177.
nature and purposes of statutes respecting, 145.
school boards and scliool districts, whether subject to statutes
imposing, 156.
reasons for not applying against the king or government, 146.
states are not bound by statutes imposing, 147, 148, 152.
states, governmental bodies or agencies which represent, 161-1(U.
states, statutes expressly applying to, what rights affected bv,
160, 164.
states, statutes imposing, when deemed applicable to, 164.
1083 Index.
Limitation of Actions, statutes of, what necessary to make applicable
to the state or the United States, 164.
statutes respecting affect the remedy only, 145.
streets, whether apply to actions to recover possession of, 169.
United States, state statutes imposing do not apply to actions
by, 151, 152, 165.
LIS PENDENS.
1. LIS PENDENS. — The Purpose of the Eule of Lis Pendens is
to prevent third persons, during the pendency of the litigation, from
acquiring interests in the land which would preclude the court from
granting relief sought. (Neb.) Merrill v. Wright, 645.
2. LIS PENDENS — Independent Titles. — The rule of lis pendens
has no application to independent titles not derived from any of the
parties to the suit nor in succession to them. (Neb.) Merrill v.
Wright, 645.
3. LIS PENDENS — Statutory Scope of. — Section 85 of the Ne-
braska Code of Civil Procedure does not extend the rule of lis
pendens so as to include all interests acquired by third persons pend-
ing suit, whatever their nature or source. (Neb.) Merrill v. Wright,
645.
MALICIOUS PROSECUTION.
MALICIOUS PROSECUTION of Civil Action.— An action will
not lie for the prosecution of a civil action with malice and without
probable cause, when there has been no arrest of the person, or at-
tachment of the property of the defendant, and no special injury
sustained which would not necessarily result in all prosecutions for
like causes of action. (Wash.) Abbott v. Thorne, 1021,
MARRIED WOMEN.
See Husband and Wife.
MASTER AND SERVANT.
Infant Employe.
1. EMPLOYMENT of Infant in Violation of Law.— If Injury
results to an infant employe in a sawmill from a failure properly
to guard dangerous machinery, his employer, who has not procured
a certificate from the school authorities permitting the employment,
as required by statute, is prima facie liable in damages. (Minn.)
Perry v. Tozer, 416.
Negligence of Employer.
2. MASTER AND SERVANT — Negligence. — Direct Evidence ia
not necessary to show due care on the part of an employe at the
time of an accident and injury to him. The fact that he is in the
exercise of duo care may be inferred from circumstances, if there
is no evidence of his negligence. (N. II.) Murray v. Boston etc.
K. R., 660.
3. MASTER AND SERVANT— Negligence— Evidence.— Proof of
the mere fact that a servant was injured in the master's service is
rot sufficient to make out a prima facie case for his recovery. (Mo.)
Jones V. Kansas City etc. R. R. Co., 434.
Index. 1083
4. RAILROADS— Negligence — Loose Cars — Burden of Proof. — If
loose and unattended cars run on to a main railroad track imperiling
the life or safety of an engineer in charge of a train on the main
track, and in the due performance of his duty, it must be presumed
that the company did not exercise reasonable care to prevent its
loose cars from escaping, and the burden of proof is on it to explain
the situation, and to show that it performed its duty in endeavoring
to prevent such loose cars from escaping. (Mo.) Jones v. Kansas
City etc. E. E. Co., 434.
5. RAILROADS — Negligence — Maintenance of Derail Switch. —
The fact that a railroad company does not maintain a "derail"
switch to prevent loose cars on a sidetrack from escaping onto the
main track is not per se negligence. The law imposes upon the
railroad company only reasonable care in such case, and does not re-
quire it to furnish absolutely safe or even the best known appliances.
(Mo.) Jones v. Kansas City etc. E. E. Co., 434.
6. RAILROADS — Negligence — Failure to "Fasten and Secure"
Cars. — An instruction authorizing a recovery for an injury to a rail-
road employe caused by the escape of loose cars from a sidetrack to
the main track, if the railroad company "negligently failed and
omitted to fasten and secure said cars on said switch or sidetrack,
and that by reason of said negligent failure and omission said cars
escaped from said sidetrack," is not open to the objection that the
words "fasten and secure" imply the duty of making such cars ab-
solutely incapable of gettinsf loose or escaping. (Mo.) Jones v.
Kansas City etc. E. E. Co., 434.
Assnmption of Fisks.
7. MASTER AND SERVANT— Assumption of Risks.— Tf one of
ordinary intelligence engaging in an employment obviously danger-
ous, knows the manner in which it is to he carried on and consents
thereto, being familiar with the conditions and surroundings, and
aware that his own work and that of his fellow-workmen will con-
stantly change its character, rendering it alternately safe and danger-
ous, he assumes the risks incident to the employment. (Utah.)
Christienson v. Eio Grande Western Ey. Co., 945.
8. MASTER AND SERVANT— Assumption of Risks.— An em-
ployer may carry on his business in any way he may choose, altlioucrh
another method would be less dangerous, and if his employe knows
the hazards incident to the business in tlie manner in which it is car-
ried on, and continues in the employment, he assumes the risks of the
more dangerous method. (Utah.) Christienson v. Eio Grande West-
ern Ey. Co., 945.
9. MASTER AND SERVANT — Assumption of Risks.— An em-
ploy6 who engages in any service, and consents to the manner in
which it is performed, aware of the conditions and the dangers inci-
dent to the employment, and voluntarily undertaking to perform the
service at the place of injury, assumes the ordinary risks thereof.
(Utah.) Christienson v. Eio Grande Western Ey. Co., 945.
10. MASTER AND SERVANT— Assumption of Risks.— Tf a ser-
vant proceeds under the order of his master or superior servant in per-
forming an act whereby he is exposed to unusual danger, the master
is liable for the resulting injury to the servant, unless the risk of
the act was fully realized by the latter, or was so apparent that no
man of ordinary prudence, situated as he was, would have under-
taken it. (Ky.) Long v. Illinois Cent. E. E. Co., 374.
1084 Index.
11. MASTER AND SERVANT— Eisk Assumed Under Superior's
Order. — A section hand in obeying the order of his section-boss to
ride on a hand-car to his place of work, when both knew that a fast
train was overdue, but neither knew its whereabouts, does not as-
sume the risk of injury from a collision therewith, unless the danger
was so obvious that a man of ordinary prudence, situated as such
servant was, would not have obeyed such order, and this is a ques-
tion for the jury to determine. (Ky.) Long v. Illinois Cent. E. E.
Co., 374.
12. MASTER AND SERVANT— Assumption of Risks— Negli-
gence.— An employe operating a locomotive on a railroad assumes the
ordinary risks incident to that business, and if injured through an
accident incident to such business, without fault of the company,
cannot recover. (Mo.) Jones v. Kansas City etc. E. E. Co., 434.
13. RAIIiROADS — Negligence — Assumption of Risks — Burden of
Proof. — Danger of a collision by a regular railroad train with cars
running loose, and unattended from a sidetrack to the main track,
is not one of the ordinary risks incident to the business of engineer
in charge of the train on the main track, and in such event the
burden of proof is on the railroad company to explain the cause of
such collision and resulting injury to the engineer. (Mo.) Jones v.
Kansas City etc. E. E. Co., 434.
14. RAILROADS — Negligence — Obvious Danger — Assumption of
Risks. — The fact that a railroad company does not maintain a "do
rail" switch on a sidetrai-k to ]irc\eiit loose i-ais thereon from es-
caping onto the main track, is not such an obvious danger as to con-
stitute it negligence for an engineer in charge of a regular train
running on the main track to continue in the service of the company
after knowledge of the absence of such "derail" switch. (Mo.)
Jones V. Kansas City etc. E. E. Co., 434.
15. MASTER AND SERVANT— Assumption of Risk.— A railroad
emploj-e does not assume tlie risk of accident from proximity of a
jigger-stand to a switch when he has no knowledge of it, and is not
chargeable with such knowledge in the exercise of ordinary care in
the performance of his duties. (N. 11.) Murray v. Boston etc. E. E.,
660.
16. MASTER AND SERVANT— Assumption of Risk.— Knowledge
by a brakeman of a jigger-stand in close proximity to a switch is
not shown by the fact that he has been over the railroad a number
of times within a short period before the accident, when such stand
is not so conspicuous as to necessarily attract his notice, and men
who have worked with him during that time have not noticed it.
(N. H.) Murray v. Boston etc. E. E., 660.
17. MASTER AND SERVANT— Assumption of Risks.— The fact
that jigger-stands are frequently placed along railroad tracks does
not cliarge a railroad employ^ with notice that one may be near a
switch, when they usually lead into carhouses and are not genernlly
placed near switches. (N. H.) Murray v. Boston etc. E. E., 660.
f^nfe Place to Work.
18. MASTER AND SERVANT— Assumption of Risks— Safe Place
to Work. — If a servant assents to occupy the place assigned him in
whifh to work, and incur all the dangers, incident thereto, having
sufficient intelligence and experience to enable him to comprehend
such dangers, his assent dispenses with the performance of the mas-
ter's dutv to furnish the servant with a safe place in which to work.
(I'tah.) Christienson v. Eio Grande Western Ey. Co., 945.
Index. 1085
19. MASTER AND SERVANT— Assumption of Risks.— If an ex-
perienced employ^ of ordinary intelligence at work: on a gravel bank
voluntarily selects a place to stand that is obviously dangerous, be-
ing familiar with the bank, its conditions and surroundings, the char-
acter of the materials of which it is composed, knowing that it was
undermined at the particular place where he is working, and aware
that the bank might cave and fall at any moment, he assumes the
risk of injury therefrom and cannot recover therefor, especially when
he had worked at the bank in the same capacity on numerous previous
occasions, and was as familiar with it, its condition, and the manner
in which operations were carried on as his employer. (Utah.)
Christienson v. Eio Grande Western By. Co., 945.
Fellow-servants.
20. RAILROADS — Negligence — Fellow-servants. — An engineer in
charge of a regular railroad train on a main track is not a fellow-
servant with other employes of the company, intrusted with the duty
of preventing loose cars from escaping from the sidetrack to the
main track in an ordinary storm by putting brakes on or blocking
them to prevent their escape. (Mo.) Jones v. Kansas City etc. K.
K Co., 434.
21. MASTER AND SERVANT— Fellow-servants.— The Foreman of
employes of a conimon inastia- eiigaoed in a coiiimoii ciiiployiiieiit of
erecting a building is a fellow-servant with them while directing or
assisting them in the performance of the duties of the common em-
ployment, and the master is not liable for the negligence of such
foreman resulting in injury to one of such common employes, except
when his acts relate to personal duties due the omploye from the
master, and from which he cannot escapp liability by delegating
them to another. (N. J. L.) Enright v. Oliver, 710.
22. MASTER AND SERVANT — Negligence of Fellow-servant.—
Employes of a common master engaffcd in a common cin])loyment of
erecting a building or other structure are all fellow-servants, and
if injury occurs to one of such employes by reason of negligent con-
struction, caused by the carelessness of a coomplove, the master is
not liable. (N. J. 'l.) Enright v. Oliver. 710.
23. MASTER AND SERVANT— Negligence of Fellow-servant.— If
the mastor has furnished a snfTicioncy of safe appliances to sel<'ct
from in the construction of a building, he is not liable for an injury
to an employe arising from tlie selection by a fellow-servant of aTi
imperfect appliance not furnislied by the master. (N. J. L.) En-
right v. Oliver. 710.
24. MASTER AND SERVANT — Negligence of Incompetent Fel-
low-servant— Assumption of Risks. — If an injury to an employe grows
out of the negligence of his incompetent fellow-servant, and the con-
ditions and his incompetency were known to the injnred employe, or
should have been known to him by the exercise of ordinary care be-
fore exposing himself to the danger complained of, and yet without
notice to the master, or seeking in any way to remedy snch condi-
tions he continued in the employment which resulted in the injury,
he must be held to have assumed the risk as an obvious one. and can-
not recover of the master. (N. ,T. L.) Enright v. Oliver. 710.
25. MASTER AND SERVANT — Fellow-servants— Assumption of
Risks. — Servants employed by or under the control of the same master,
in a common employment, obviously exposing them to injury from the
negligence of others so employed or controlled, although engaged
in different departments of the common business, are fellow-servants.
1086 Index.
who assume the risk of each other's negligence, and cannot have
recourse to the master for any injury resulting therefrom. (N. J. L.)
Enright v. Oliver, 710.
Independent Contractor,
26. INDEPENDENT CONTEACTOB, Liability of Land Owner for
Negligence of. — If the owner of property employs another to build
a house thereon, and the latter causes sand to be hauled and piled
up in the street in front of the premises, and negligently leaves
the pile of sand unmarked by danger signals of any kind, whereby
another driving along the street, at night, in a buggy, is overturne<l
and injured, the land owner is not liable, because the negligence is
not that of a servant, but of an independent contractor. (Iowa.)
Hoff v. Shockley, 289.
See Constitutional Law, 6-8.
Note.
Master and Servant, acts of servant, when deemed to be in the course
of his employment, 738, 739.
definitions of servant, 734.
difference between corporations and natural persons as, 734, 735.
exemplary damages against masters for arrest by servants, 745.
exemplary damages against masters for assaults by servants, 760-
762.
exemplary damages against masters for collisions in highways
due to servants, 763.
exemplary damages against masters for fplse imprisonment by
servants, 744.
exemplary damages against masters for insults and indignities
of servants, 743.
exemplary damages against masters for negligent sales of poisons
by servants, 765.
exemplary damages against masters for publication of libel by
servants, 752-758.
exemplary damages against masters for trespass committed by
servants, 767-772.
exemplary damages may be recovered for acts of a servant
where they could be recovered for a like act of the master,
737, 738.
exemplary damages on what grounds may be awarded against
the former for the acts or neglects of the latter, 735, 736.
liabilitv of the former for the acts of the latter, basic theory of,
733.
ratification by masters of sales made by servants, 762.
ratification by masters of unauthorized acts of servants, 739.
relation of, when exists, 733, 734.
Maxim, "Nullum tempus occurrit regi, " 144-14S.
MENTAL SUFFERING.
See Damages; Telegraphs and Telephones.
MONOPOLIES.
A MONOPOLY in the Sale of Books not Protected by Copy-
right offends against the laws of the state of New York
providing that every agreement, contract, arrangement, or combina-
Index. 1087
tion whereby a monopoly in the manufacture, production or sale in
this state of any article or commodity of common use may be created,
established or maintained, or whereby competition in this state in
the supply or price of any such article or commodity may be re-
strained or prevented, or whereby, for the purpose of creating, es-
tablishing or maintaining a monopoly within this state of the manu-
facture, production or sale of any such article or commodily, the
free pursuit in this state of any lawful biisiness, trade or occupation
is or may be restricted or prevented, is hereby declared to be against
public policy, and illegal and void. Hence, an agreement between
members of an association of publishers and booksellers, whereby
persons selling copyrighted books at a price less than that fixed
by the association are excluded from selling books altogether,
whether copyrighted or not, offends against this statute, and cannot
be upheld on the ground that its only object is to punish those who
refuse to be bound by the wishes of the owners of hooks which are
protected by copyright. (X. Y.) Straus v. American Publishers'
Assn., 819.
MORTGAGES.
1. MORTGAGE— Consideration. — The Contingent Liability of a
principal to his sureties is sufficient consideration for a mortgage
given to indemnify them after the execution and delivery of the
bond, and before any breach. (Neb.) County of Harlan v. Whitney,
610.
2. MORTGAGE — Parol Evidence to Explain. — If a deed recites
that the grantee is trustee for the sureties on the bond of the grantor,
parol evidence is admissible to identify the sureties and the obliga-
tion referred to. (Neb.) County of Harlan v. Whitney, 610.
3. MORTGAGE to Indemnify Sureties — Validity. — A mortgage
given by a county treasurer to indemnify the sureties on his bond
is not void because at the time of its execution he was suspected of
embezzlement, and it was given to protect them against consequent
liability. (Neb.) County of Harlan v. Whitney, 610.
4. MORTGAGE — Effect of Transferring Note Secured.— A real
estate mortgage given to secure a negotiable note is mere incident
to the debt, and passes with a transfer of the note. (Neb.) Con-
sterdine v. Moore, 620.
5. MORTGAGE and Note Secured — Notice to Purchaser. — When a
note and the mortgage securing it, together with an assignment of
the mortgage, are sold and delivered, the purchaser must take notice
of the provisions in the papers. (Neb.) Consterdine v. Moore, 620.
6. MORTGAGES — Estoppel. — If an owner of land executes a
first and second mortgage thereon, and, upon default, there is a
foreclosure by both of the mortgagees, the mortgagor is estopped to
dispute the title conveyed by his second mortgage. (Ala.) Graham
V. Partee, 32.
MUNICIPAL CORPORATIONS.
Legislative Tnierfermce V^'ith Government.
1. CONSTITUTIONAL LAW— Right to Local Self-govern-
ment.— Municipal corporations have a right to local self-governmont,
and it is not within the power of the legislature to permanently
fill by appointment and fix the compensation of the local or munici-
pnl offices established bv law for purely local purposes. (Ky.) Lex-
ington V. Thompson, 361.
1088 Index.
2. CONSTITUTIONAL LAW— State Interference with Munici-
pal Government. — A statute fixing the compensation to be allowed
the officers and members of a municipal fire department, created for
purely local purposes, is void as violative of the right of the munici-
pality to govern and control its purely local affairs. (Ky.) Lexing-
ton V. Thompson, 361.
License Tax.
3. MUNICIPAL CORPORATIONS— Contracts by— Ultra Vires.—
An agreement by a municipal corporation to limit the amount of
license tax to be exacted of a water company during the term of a
contract to supply water, if made without legislative sanction, is
ultra vires, and void. (Ala.) Mayor of Birmingham v. Birmingham
etc. Co., 49.
Water and Light Plants.
4. MUNICIPAL CORPORATIONS— Subject of Necessary Ex-
pense.— A city or town has power to incur an indebtedness for the
erection and operation of plants for the supply of water and electric
lights for municipal use and to sell to its inhabitants as a necessary
municipal expense without the approval of the proposition by a ma-
jority of the qualified voters of the municipality. (N. C.) Fawcet*'
V. Mount Airy, 825.
Streets.
5. STREETS— Rights of Abutting Owners.— The right of the
owner of a lot in a city or town to the use of the street and to dam-
ages for its obstruction does not depend on his ownership of any of
the soil under the street. His right flows from the fact that his lot
abuts on the public street. (Mo.) De Geofroy v. Merchants' Bridge
etc. Ey. Co., 524.
6. STREETS — Abutting Owners — Easements — Compensation. — Ad
abutting owner on a public street has an easement therein of light
air, and access to and from his property by means of such street, of
which he cannot be deprived without compensation. (Mo.) De
Geofroy v. Merchants' Bridge etc. Ey. Co., 524.
7. STREETS— Surface Railroads in— New Servitude.— The con-
struction and maintenance of a steam or street railroad on the grade
of a street in pursuance of municipal authority, the municipal
corporation having power to grant it is not a new or additional ser-
vitude on the land upon which the street is constructed, and falls
within the use contemplated when the street was laid out or acquired
Tiv the public. (Mo.) De Geofroy v. Merchants' Bridge etc. Ey.
Co., .124.
8. STREETS — Elevated Railroads Therein— New Servitude.— An
elevated steam railroad, constructed on permanent pillars or arches
in a public street by consent of the municipality, so as to shut out
tlie light and air of abutting owners and interfere with the free
use of the street, and their access to and from their premises, is a
iH'w and additional servitude, and one not in contemplation when the
street was acquired or laid out, and one which entitles them to just
compensation for any depreciation in the value of their property
caused by the construction and maintenance of such railroad. (Mo.)
De Geofroy v. Merchants' Bridge etc. E}'. Co., 524.
9. STREETS — New Servitude Therein— Limitation of Action. —
An action by abutting property owners on a public street to recover
Index. 1089
for damages to their property caused by the construction of an ele-
vated railroad therein is barred by limitation in five years after such
construction has become permanent and complete. (Mo.) De Geo-
froy V. Merchants' Bridge etc. Ry. Co., 524.
See Quo Warranto.
Note.
Municipal Corporations, statutes of limitation, whether applicable to
suits and actions by, 157, 175-177.
MUBDEB.
See Homicide; Insurance.
NEGLIGENCTB.
In General.
1. NEGLIGENCE, CONTRIBUTORY— Concurrent Negligent Act3.
The rule that a plaintiff's contributory negligence does not bar his
right to recover where the defendant, after discovering his danger,
fails to use ordinary care to avoid injuring him, has no application
when both parties are guilty of concurrent acts of negligence, each
of which, at the very time when the accident occurs, contributes to
it. (Cal.) Green v. Los Angeles etc. Ey. Co., 68.
2. NEGLIGENCE, CONTRIBUTOBY— Bight to Becover.— A
plaintiff may recover notwithstanding his contributory nogligenee.
when the defendant is gv'ilty of negligence in seeing the plaintiff's
peril, and though owing him a duty and being able with ordinary
care to avoid such peril, yet recklessly and wantonly inflicts injury
upon him. (Mo.) Parks v. St. Louis etc. Ey. Co., 425.
3. NEGLIGENCE— Accident — Evidence. — The manner of the oc-
currence of an accident, as disclosed by the evidence, may warrant
an inference in favor of the person injured, that he had no knowl-
edge of a defective appliance which caused the accident. (N. H.)
Murray v. Boston etc. E. E., 6'60.
4. NEGLIGENCE— Petition Omitting the Word "Negligence."—
If, in an action for personal injuries, th& inference of nogligonce is
inevitable from the facts narrated in the petition, the omission of
the word "negligence" in the pleading does not render it defective.
(Neb.) Geneva v. Burnett, 628.
Imputed Neplifjcnce.
5. NEGLIGENCE — Imputable. — The negligonce of the driver of
a vehicle cannot be imputed to a passenger or guest riding (herein.
(N. C.) Duval V. Atlantic Coast Line E. E. Co., 830.
6. NEGLIGENCE — Imputable. — One who is injured by the joint
or concurring negligence of a private person with whom he is rid-
ing by invitation as a guest or companion, and a third person, is
not chargeable with the negligence of tlie driver, so as to prevent
rceoverv for an injury received. (N. C.) Duval v. Atlantic Coast
Line E^ E. Co., 830.
I'vxruuifj from Dnnqcr.
7. NEGLIGENCE, Contributory in Attempting a Bescue. — One
who seeks to rescue another from imminent danger, thereliy imperil-
ing his own life, is not necessarily guilty of contributorv neglifrence.
He who springs to the rescue of another, encountering great danger
Am. St. Rep., Vol. 101—69
1090 Index.
to himself, is not to be denounced as negligent, but the propriety of
his conduct is to be left to the judgment of the jury. (Iowa.) Saylor
V. Parsons, 283.
8. NEGLIGENCE, Recovery for Injuries Suffered in Attempting
a Rescue. — An employ^ who, in attempting to rescue one of his em-
ployers from immediate danger, is himself injured, cannot recover
from his employers or the one rescued, unless it appears that he or
they were guilty of some negligence toward such rescuer. (Iowa.)
Saylor v. Parsons, 283.
9. NEGLIGENCE in Placing One's Self in Peril Resulting in In-
jury to the Rescuer. — One who places himself in peril is not guilty
of negligence toward another which entitles the latter to recover
for injury suffered in attempting to rescue the former from his peril.
(Iowa.) Saylor v. Parsons, 283.
Dangerous Premises.
See Party-walls, 3-4.
10. NEGLIGENCE — ^Dangerous Premises. — By a Mere Licensee is
meant one who has the tacit permission or privilege of entering upon
the premises of another, but without invitation, express or implied;
under such circumstances a person enters at his own risk, and must
take the premises in the condition in which he finds them. (Minn.)
Klugherz v. Chicago etc. Ry. Co., 384.
11. NEGLIGENCE — Dangerous Premises. — If One Invites another,
either expresslj'- or by implication, to go upon hig premises, there
arises the obligation to use ordinary care that the visitor shall not be
injured. (Minn.) Klugherz v. Chicago etc. Ry. Co., 384.
12. NEGLIGENCE — Dangerous Standing Walls — Notice of. — An
adjoining owner, who has notified the owner of a dangerous standingr
wall of its insecure condition, is not guilty of contributory negli-
gence in not taking means to prevent such wall from falling, to his
injury and resulting damage. (111.) Beidler v. King, 246.
See Damages; Death; Highways; Master and Servant: Railroads.
NEGOTIABLE INSTRUMENTS.
See Bills and Notes.
Note.
Newspapers, libel, liability of to exemplary damages for publishing,
753-760.
NEW TRIAL.
NEW TRIAL — Sufficiency of Statement. — An objection that
the statement on motion for a new trial does not sufficiently specify
the particulars in which the evidence is insufficient to justify the
decision, will be overruled when it is stated therein: "The foregoing
constitutes substantially all the evidence given upon the trial."
(Cal.) Di Nola v. Allison, 84.
NUISANCE.
See Constitutional Law, 14.
OFFICERS.
PUBLIC OFFICER— Payment of Salary to a De Facto Officer
as a Defense to an Action by an Officer De Jure. — If the salary is
Index. 1091
paid to an officer de facto during his incumbency in the office, but
while an action contesting his right is pending, which finally ter-
minates in an action declaring another to be, and to have been, en-
titled to the office, the latter cannot recover such salary from the
county so paying it. (Iowa.) Brown v. Tama County, 296.
See Principal and Surety.
PAROL EVIDENCE.
See Evidence, 8-10; Frauds, Statute of.
PARTIES.
1. ACTIONS — Unnecessary Parties. — If a statute declares that a
trustee of an express trust may sue in his own name without joining
the person for whose benefit the suit is prosecuted, the joining of
such beneficiary, if not forbidden by statute, is unnecessary, but
rot fatal to the action. (Mo.) Jones v. Kansas City etc. E. E. Co.,
434.
2. ACTIONS — Unnecessary Party. — An unnecessary party to an
action may be dropped at any time without affecting the rights of
necessary parties and the presence of the unnecessary party in the
case is not ground for a reversal of the judgment. (Mo.) Jones v.
Kansas City etc. E. E. Co., 434.
See Death, 2; Executors and Administrators, 4; Infants.
PARTITION.
1. PARTITION — Cotenancy. — Compensation allowed for improve-
ments made by one cotenant without the knowledge of the others
should, on partition, be so estimated as to inflict no injury- upon the
cotenant against whom the improvements are charged. (HI.) Heppe
V. Szczepanski, 221.
2. WILLS — Partition by Heirs. — Where a testator devises land
to his wife for life, in trust for their children and directs the ex-
ecutor, after her death, to sell the property and divide the pro-
ceeds among the children, their title is insufficient to maintain par-
tition as heirs at law of the testator. (Cal.) Bank of Ukiah v. Kice,
118.
3. PARTITION. — Judgment in partition determining the respec-
tive interests of parties thereto is binding on them as against an
after-acquired title. (X. C.) Carter v. White, 853.
Xote.
Partition, judgment in, adverse claims of title whether may be de-
termined by, 872, 873.
judgment in, after-acquired title, whether bound by, 876, S77.
judgment in, child en ventre sa mere, whether bound by, 869.
judgment in, claims for owelty are necessarily settled by, 873.
judgment in, contingent interests, effect of upon, 870.
judgment in, directing sales, effect of upon rights of dower. 867.
judgment in, dower, effect of upon inchoate right of, 866, 867.
judgment in, effect of, general rule. 864.
judgment in, failure of title after, right to contribution for, 874.
judgment in. husband of cotenant, when bound by, 866.
1093 Index.
Partition, judgment in, improvements, claims for, -when necessarily
settled by, 873.
judgment in, incidental questions which may be settled by, 873.
judgment in, inchoate interests perfected subsequently, whether
bound by, 876, 877.
judgment in, issues or questions settled and determined by in
statutory proceedings, 871-874.
judgment in, issues or questions settled by, 870.
judgment in, liens, how affected by, 867, 868.
judgment in, liens upon property, claims for, whether settled by,
873.
judgment in, none but parties to the action are bound by, 865.
judgment in, nonresidents may be bound by, 865.
judgment in, persons not in esse, when and how bound by, 868,
869.
judgment in, possession only determined by at the common law,
870, 871.
judgment in, privies of the parties are bound by, 866.
judgment in, purchasers pendente lite are bound by, 866.
judgment in, title acquired by one of the parties pendente lite is
bound by, 875.
judgment in, titlo paramount is not affected by. 875.
judgment in, unknown owners, effect of proceedings against, 870.
judgment in, warranty of title, whether implied by, 875.
judgment in, wife of cotenant, when bound by, 866.
sales in, effect of upon liens and on rights of dower, 866-868.
PARTNERSHIP.
1. PARTNERSHIP— Real Estate— Parol Evidence of Title.— It is
not competent, in order to affect tlie tit]e or possession of land, to
show by parol that a deed to two persons as tenants in common
was purchased and paid for by them as partners and is partnership
property; purchasers and creditors alike may rely on the title to
real estate as shown by the record. (Pa. St.) Cundey v. TTall, 93S.
2. PARTNERSHIP — Real Estate. — Creditors of a Partneriship
■u-hose menibors hold land as tenants in common cannot enforce pay-
ment of their claims out of the land as against individual creditors nf
ihe partners: the latter are entitled to have their claims first sati'i-
fled out of the proceeds of the prcjperty. (Pa. St.) Cundey v. Hall,
938.
S. PARTNERSHIP— Real Estate. — As Between Partners them-
selves real estate purchased with partnership funds and for part-
nership purposes is partnership property and may be shown to be
such, notwithstanding the deed was made to the individuals com-
posing tlie firm as tenants in common. (Pa. St.) Cundev v. Hall,
038.
4. PARTNERSHIP- Real Estate. — A Judgment Creditor may, in
order to satisfy a balance still due after selling his debtor's in-
terest in a partnership, take the debtor's share of the proceeds of
real estate held by him and his partner as tenants in common, as
against the purchaser of the partnership interest. (Pa. St.)
Cundey v. Hall, 938.
PARTY-WALLS.
1. PARTY-WAILS— Construction of Agreement for Repairs —
A 2^arty-\vall agreement, providing that if repairs are necessary after
Index. 1093
one of the parties has used or paid for his portion of the wall, the
expense shall be borne equally by the parties to the extent that they
are each using the wall, imposes no obligation on the first-named
party to repair or pay for repairs to any portion of the wall not used
by him. (111.) Beidler v. King, 246.
2. PARTY-WALLS — Partial Destruction— Liability for Danger-
ous Condition. — If a party-wall is built partly on the land of an
adjoining owner, its partial destruction and weakening by fire do
not devest the builder of his interest in the land of such adjoining
owner so as to render the latter the sole owner of that part of the
wall standing on his land, and make him liable for its dangerous
condition. (111.) Beidler v. King, 246,
3. PABTY-WALLS — Liability for Dangerous Condition. — A part
owner of a party-wall who negligently permits it to stand after its
partial destruction and weakening by fire is liable to another part
owner who is using part of the wall for damages resulting to the
latter from a falling of another portion of the wall in which he has
no interest and is not using. (111.) Beidler v. King, 246.
4. PARTY-WALLS— Right to Prevent Injury from Falling of.—
If a party-wall agreement gives to one party no right to use or
deal with any portion of the wall until he shall have paid one-half
of the cost thereof, he has no right to go upon the adjoining prem-
ises for the purpose of bracing a portion of the wall, not used or
paid for him, to prevent it from falling upon his property. (111.)'
Beidler v. King, 246.
PASSENGERS,
See Carriers,
PAYMENT.
See Accord and Satisfaction; Bills and Notes, 5; Principal and Agent.
Note.
Payment, presumption of, whether applies against a state, 149.
PENALTIES.
1, PENAL ACTIONS— Burden of Proof.— In a penal action to
recover a pcMialty for not stojiping at a crossing, as required bv the
statute, the burden of proof is on the prosecution to show tliat the
failure to so stop was due to the fault of the defendant. (Iowa.)
State V. Chicago etc. Ey. Co., 254.
2. PENAL ACTIONS — Reasonable Doubt. — In a penal action the
state must assume the burden of proof, but need not show that the
offense has been committed beyond a reasonable doubt. Such cases
are controlled by the rule of evidence governing civil actions.
(Iowa.) State v. Chicago etc Ey. Co., 254.
PLEADING.
1. PLEADING— Waiver of Defects. — A defect appearing on the
face of the complaint can be reached only by demurrer, unless it
affects the validity of the cause of action, rendering the complaint
insufficient to support the cause of action, and then it can be neither
waived nor cured, and can be brought up on motion to arrest judg-
ment or during the trial. All other defects in the complaint can bo
1094 Index.
waived and are deemed to have been waived unless brought to the
attention of the court by demurrer, and unless, if the demurrer is
overruled, the defendant declines to plead to the merits. (Mo.)
Jones V. Kansas City etc. K. E. Co., 434.
2. PLEADINGS — Amendment. — The doctrine of the relation back
of amendments to the commencement of a suit is a fiction of law,
and should never be applied when it will operate to cut off a substan-
tial right or defense to new matter introduced by the amendment to
the complaint, though connected with the original cause of action.
(Ala.) Nelson v. First Nat. Bank, 52.
See Judgments, 9, 10; Limitation of Actions; Negligence, 5.
POLICE POWER.
See Constitutional Law.
POSSESSION OF STOLEN GOODS.
See Criminal Law, 10-14,
Note.
Possession of Stolen Property, as evidence of guilt, application of the
doctrine to prosecutions for burglary, 482-484, 489.
as evidence of guilt, application of the doctrine to prosecutions
for larceny, 482-485.
as evidence of guilt, application of the doctrine to prosecutions
for receiving stolen property, 484.
as evidence of guilt, application of the doctrine to prosecutions
for robbery, 484.
burden of accounting for in criminal prosecutions, 485, 486, 502.
by cotenant or associate, 520.
conviction, when sustainable if founded on, 493.
efleet of access to of the family of the accused, 516-518.
effect to be given to is for the jury, 492.
evidence of does not warrant a conviction where the Jury en-
tertains a reasonable doubt of guilt, 503.
evidence of is always ailmissible, 485.
evidence of, when sulHcient, 505, 506.
explanation of may cieate a reasonable doubt, though not satis-
factory, 522.
explanation of, showing guilt of some other crime, 522.
explanation of, sufficiency of is for the jury, 503.
explanation of, what amounts to, 520.
false ex]danation of, effect of, 523.
identification of the property or money, 506, 507.
inference to lie drawn from is for the jury, 523.
inf(^renco wliich may be drawn from, 495.
instructions concerning the weight of, when erroneous, 502, 518,
519.
is a mere circumstance tending to show the guilt of the pos-
sessor, 497, 498.
is prima facie evidence of the guilt of the possessor, 492.
joint possession of, whether creates an inference of guilt, 573.
lapse of time, when destroys the inference arising from, 510, 511.
money, ndes relating to, when applicable to, 506-510.
must be exclusive to create inference of guilt, 513, 515.
Index. 1095
Possession of Stolen Property, must be of property recently stolen to
create an inference of guilt, 510.
nature of presumption arising from, 499.
part of the property, possession of, whether creates inference
of guilt as to the whole, 518, 519.
presumption arising from is not one of law, but of fact, 488, 496.
presumption of guilt arising from unexplained, 486-490.
presumption of guilt arising from, when becomes conclusive,
490, 491.
presumption of innocence, when outweighs presumption of guilt
arising from, 494.
rebuttal of the inference arising from, 492.
recent, what is meant by in the law applicable to, 511.
reputation of the accused in rebutting the presumption arising
from, 504.
weight to be attached to evidence of, 498.
what constitutes, 509.
where others have had equal access to the place of deposit, 514,
515.
POWER OF SALE.
POWERS OF SALE — Intention to Execute.— It is not neces-
sary that the intention to execute a power of sale shall appear liv
express terms or recitals in the instrument, and it is sufficient, if it
appears by words, acts, or deeds, demonstrating such intention, nor
is it necessary that the power be referred to, or recited, in the deed
of the donee of the power, provided the act of the donee shows that
he had in view the subject matter of the power at the time of ex-
ecuting the deed. (Ala.) Young v. Sheldon, 44.
See Husband and Wife, 5, 6,
Note.
Presumption as to the place of loss of or injury to goods as between
connecting carriers, 393-399.
of guilt arising from tlie unexplained possession of recently
stolen property, 486-490.
PRINCIPAL AND AGENT.
1. AGENT, PAYMENT TO— Evidence of the Indebtedness.—
That a person to whom money due another is paid is not in possession
of the instrument by which the indebtedness is evidenced, is not
conclusive of his mithoritv. or IncV of ■*, to collect the nu)nt>y.
(Neb.) Harrison Nat. Bank v. Austin, 639.
2. AGENT, PAYMENT TO— Estoppel of Principal.— Who r(^ a
principal has placed his agent in such a position witli ref(M-enre to
a note and mortgage that a person of ordinary prudence, conversnnt
with business usages, is justified in presuming him autliorized to
collect the amount due. pnvnient to him dischargres the ob]i<r;,tion.
(Neb.) Harrison Nnt. Bank v. Auslin, 639.
3. AGENT, AUTHORITY OF, Inferred from Other Transac
tions. — The authority of an agent to do a partimilar act in con
nection with a transaction may be inferred from proof that liis
principal "authorized or ratified similar acts in connection witli pnst
transactions intrusted to him under similar circumstances. (Neb.)
Harrison Nat. Bank v. Austin, 639.
10:)6 Index.
PRINCIPAL AND SURETY.
1. SURETYSHIP — Security for Indemnity.— A Creditor is En-
titled to enforce for his own benefit any securities which the principal
debtor has given his surety by way of indemnity. (Neb.) CoTinty
of Harlan v. Whitney, 610.
2. SURETYSHIP— Right of Obligee to Assigned Securities.—
If sureties on the bond of a county treasurer assign to the county
securities given them by the principal by way of indemnity, the
county may enforce them, although the sureties might not have done
So without first discharging the obligation. (Neb.) County of Har-
lan V. Whitney, 610.
3. SURETYSHIP — ^Discharge of Security. — If a person pledges his
property as security for the performance of the contract of a third
person, the property stands in the position of a surety, and any
change in the contract which would have discharged a surety upon
the contract will discharge the property pledged as security. (N. H.)
Mechanicks Nat. Bank v. Comins, &50.
See Appeal and Error, 4; Guaranty.
PROBATE PROCEEDINGS.
See Executors and Administrators.
PROCESS.
1. PROCESS. — The Immunity from Service of Civil Process on
a witness while attending the trial in another state to give evidence
seems to be universally recognized. (Iowa.) Murray v. Wilcox, 263.
2. PROCESS — Exemption of Party to Action from Service of
While Attending Court. — A nonresident defendant in a criminal prose-
cution attending the courts of the state for the purpose of his trial
is exempt from the service of civil process while coming and depart-
ing, as well as while actually in attendance at court. (Iowa.) Mur-
ray V. Wilcox, 263.
See Executors and Administrators, 5, 6; Judgments, 2-8; Sunday, I.
PROHIBITION, WRIT OF.
PROHIBITION, WRIT OF— Office of.— A writ of prohiltition
can never be made to perform the functions of an ajjpeal or writ of
error, and lies only where a court, or tribunal clothed with judi-
cial powers, acts in relation to matters over which it has no jurisdic-
tion, or having jurisdiction over the subject matter, acts in excess
of its jurisdiction. (Mo.) Schubach v. McDonald, 452.
PUBLIC OFFICERS.
See Officers.
QUO WARRANTO.
QUO WARRANTO — Municipal Incorporation. — Quo warranto
does not lie against a municipal corporation to test the validity of
the election under which it was iucorpoiated. (Wash.) Slate v.
South Park. 998.
Note.
Quo Warranto, statutes of limitation, whether applicable to proceed-
ings in, 187.
Index. 1097
EAIliROADS.
1. EAUiROAD TRACK— Negligence in Crossing.— One who stcpg
upon a railroad track immediately in front of a train moving at an
excessive speed, without giving the customary signals, but visible for
the last eight hundred feet of its course, is guilty of contributory
negligence, as a matter of law. (Cal.) Green v. Los Angeles etc.
Ey. Co., 68.
2. KAILEOAD TRACK— Person Crossing. — An Engineer may As-
sume that a person approaching the railroad is in the possession of
her ordinary faculties, and will retain her position of safety and not
recklessly expose herself to danger by crossing the track in front
of the approaching train. He is not required, therefore, to check
the speed of the train to enable her to cross in front of it, nor to
ascertain whether she is about to do so; if, after she steps upon the
track, he does all in his power to avert an accident, this is all the
law requires. (Cal.) Green v. Los Angeles etc. Ey. Co., 68.
3. RAILWAY — Breaking of Cable in Unloading Gravel Train.—
In an action against a railway company for injuries sustained by a
person, while standing near a depot, through the breaking from' its
stay ropes of a cable used in unloading a gravel train, evidence of
the manner of starting the enjrine and of the character of the ropes
is admissible. (Minn.) Klugherz v. Chicago etc. Ey. Co., 384.
4. RAILROADS — Negligence— Evidence. — Violation by a railroad
company of its contract with a town not to run its trains through the
streets above a certain speed, is evidence of negligence in an action
against it for personal injury to a person upon tho street. (N. C")
liuval V. Atlantic Coast Line E. E. Co., 830.
5. STATUTES, PENAL, Construction of. — If a statute is penal in
character, it ought not to be construed as fixing a liability where
there is no fault. Hence, thougli a statute declares that all trains
upon any railway which intersects or crosses any other railway on
the same level shall be brought to a full stop at a distance of not
less than two hundred and not more than eight hundred feet from the
point of intersection, and that any engineer violating the provisions
of the section shall be fined one hundred dollars, and the corporation
on whose road the otTense is committed two hundred dollars for
each offense, neither can be held liable where the failure to stop was
due to the brakes not working in the usual manner. (Iowa.) State
v. Chicago etc. Ey. Co.. 254.
6. CONSTITUTIONAL LAW— Punishing Railway for Act of En-
gineer.— A statute imposing a penalty on a railway corpuration for
the failure of its engineer to stop at a crossing is not unconstitu-
tional. It merely exacts of the corjioration the duty of seeino; tint
its employe acts in obedience to the statute. (Iowa.) State v. Chi-
cago etc. Ey. Co.. 254.
See Carriers; Z^laster and Servnnt; Municipal Corporations, 7-9;
Street Eailroads.
RECEIPTS.
See Evidence, 8.
Note.
Receiving Stolen Property, i»ossession of stolen property as evidence
of the guilt of the possessor, 4b4.
1098 Index.
EEFERENCE.
PEACTICE in Surrogate Courts.— The Report of a Referee
appointed in pursuance of section 2546 of the New York code
is subject to confirmation, modification or rejection by the sur-
rogate. Such report is not self-executing, and it is both the right and
duty of the surrogate to act upon it even after ninety days after it
Las been submitted to him. (N. Y.) Matter of Barefield!^ 814.
REFORMATION OF INSTRUMENTS.
1. DEEDS — Reformation of — Knowledge of Mistake. — If a bill
for the reformation of a deed by a subsequent purchaser does not
allege want of notice of the mistake, construing it most strongly
against the complainant, such purchaser must be held to have known
of the mistake at the time of acquiring rights under the conveyance.
(Ala.) Jones v. McNealy, 38.
2. DEEDS — Reformation of. — A purchaser is entitled to his
grantor's right to enforce a correction of a description in a prior
deed to a part of the premises executed by the grantor to another.
(Ala.) Jones v. McNealy, 38.
3. DEEDS — Reformation of — Deeds of Gift. — The right to the
reformation of a deed is not affected by whether it is one of bargain
and sale, or of gift. (Ala.) Jones v. McNealy, 38.
4. DEEDS — Reformation. — Possession of Premises by the pur-
chaser is not essential to enable him to obtain correction of a mis-
take in the description contained in a prior deed to a portion of the
premises executed by his grantor to another. (Ala.) Jones v. Mc-
Nealy, 38.
5. DEEDS — Reformation of Laches. — Complainant asking the cor-
rection of a mistake in a descrijition in a deed is not guilty of
laches in bringing suit, if she has been in possession of a portion of
the premises to which she has a deed ever since its execution, and
l;er mortgagor and grantor has been in possession of the other por-
tion, and the bill is filed promptly after the defendant, who claims
title under the deed containing the mistake, discloses his intentiou to
disturb complainant's possession. (Ala.) Jones v. McNealy, P.S.
6. DEEDS — Reformation of — Time of Discovery of Mistake. —
A bill for the correction of a mistake in a deed need not allege when
the complainant discovered the mistake, or that a demand or request
has been made for its correction. (Ala.) Jones v. McNealy, 38.
7. DEEDS — Reformation of— Demand for. — A bill for the cor-
rection of a mistake in description in a deed need not allege a de-
mand or request of defendant to correct it, when defendant has in-
stituted suit in ejectment against the complainant's tenant. (Ala.)
Jones V. McNealy, 38.
8. DEEDS — Reformation of— Relief Granted.— If a bill presents
a case tor the correction of a mistake in a deed, the court will grant
full relief to tlie end of foreclosing a mortgage! given ]>y ilefendant
to complainant on a portion of the same premises, when the evidence
establishes the right to the correction. (Ala.) Jones v. McNealy,
38.
RESCUING FROM DANGER.
See Negligence, 7-9.
Index. 1099
BES GESTAE.
See Evidence, 6, 7.
EES JUDICATA.
See Judgments, 11, 12.
REVERSAL OF JUDGMENT.
See Appeal and Error, 11-14; Executions, 3, 4.
ROBBERY.
ROBBERY — Indictment — Aggravation. — If an indictment for
robbery states the essential facts of the crime, it is not necessary
that it further allege circumstances of aggravation in order to war-
rant the imposition of a penalty provided by statute for the com-
mission of a robbery under aggravated circumstances. (Iowa.)
State V. Poe, 307.
Note.
Robbery, possession of stolen property as evidence of the guilt of the
possessor, 482.
SALES.
SALES — Purchaser With Notice. — A purchaser of a note and
mortgage is chargeable with notice of their fraudulent character if
enough appears of record to put him upon inquiry which could not
have failed to disclose the facts. (111.) Heppe v. Szczepanski, 221.
See Constitutional Law, 9-12.
SEARCHES AND SEIZURES.
1. UNLAWFUL SEARCH— Consent— Evidence.— If, in an action
to recover for searching premises without a warrant, the evidence as
to whether the plaintiff and owner gave his consent to the searcli
is conflicting, directing a verdict for defendant is erroneous.
(Towa.) M&Clurg v. Brenton, 323.
2. UNLAWFUL SEARCH by Officer.— A search of a private
residence for evidence of crime, without a warrant therefor, cannot
be justified, though made by an officer. (Iowa.) McClurg v. Bren-
ton, 323.
3. UNLAWFUL SEARCH— Evidence— Use of Hounds.— In an
action to recover for an unlawful search, evidence as to tlie conduct
of hounds used to track the thief is admissible only on the question
of malice, in mitigation of damages. (Iowa.) McClurg v. Bren-
ton, 323.
4. UNLAWFUL SEARCH— Use of Hounds— Evidence.— In an
action to recover for an unlawful search of private premises, through
the use of hounds, evidence as to their breeding and training, letters
indorsing, and stories concerning their ability and usefulness, are
not admissible. (Iowa.) McClurg v. Brenton, 323.
5. UNLAWFUL SEARCH— Evidence— Photographs of Hounds.—
In an action to recover for an unlawful search, photographs of liounds
used in making such search are not admissible in evidence. (Iowa.)
McClurg V. Brenton, 323.
1100 Index.
Note. 1
Search of Premises of Private Persons, constitutional guaranties
against, 328, 329.
goods to be searched for must be described in a searcii-warrant,
332.
not in aid of the administration of justice, 329.
policemen have no authority to make without a warrant, 330.
power to inspect does not include power to search,' 330.
provisions of the constitution of the United States concerning
do not apply to states, 329.
right of exemption from is not dependent upon constitutional
provisions, 329. _
search-warrants, when sufficient to authorize, 330-332.
trespass, action of for wrongful, 334.
unreasonable defined, 328.
violation of right of exemption from, what is, 329.
warrant necessary to authorize, 329, 330.
warrant of arrest, whether authorizes, 334.
where a person is accused of crime, 329.
Search-warrants are not available in civil proceedings, 330.
definitions of, 330.
goods to be searched for, description of in, 331, 332.
justification under, 333, 334.
liability of persons suing out, 333, 334.
malicious prosecution of proceedings for, 332, 333.
necessity of, to authorize a search of private premises, 329, 330.
place to be searched, description of, when sufficient, 331.
place to be searched must be described in, 331.
premises which may be searched under, 331, 332.
statutes authorizing, 330, 331.
warrant of arrest, when answers the purposes of, 334.
when sufficient to authorize a search of private premises, 331.
SENTENCE.
See Criminal Law, 23.
SERVICE OF PROCESS.
See Process.
Note.
Sovereignty, definitions of, 158, 159.
in whom vests, 159.
SPECIFIC PERFORMANCE.
1. CONTRACTS to Convey Land — Breach of Election of Reme-
dies.— Upon a broacli of a contract to convey land, the purchaser
mav sue for specific performance, and is not bound to bring an action
at law for damages. (N. C.) Rodman v. Robinson, 877.
2. SPECIFIC PERFORMANCE — Contract to Convey— Dower
Rights. — A husliand cannot avoid a decree for the specific perform-
ance of his contract to convey land to which his wife is not a party,
on the ground that she is entitled to dower in the land. (N. C.)
Rodman v. Robinson, 877.
Index. 1101
3. SPECIFIO PERFORMANCE— Contract to Convey I.and.— If
no Fraud or Mistake is alleged, the fact that the vendor made a bad
trade does not release him from specific performance of his contract
to convey land. (N. C.) Kodman v. Robinson, 877.
4. SPECIFIC PERFORMANCE— Contract to Convey. — Descrip-
tion of the land by metes and bounds is sufficient in a suit for the
specific performance of a contract to con^vey land. (N. C.) Kod-
man V. Robinson, 877,
SPITE FENCE.
See Constitutional Law, 14.
Note.
States, acquiescence by in the exercise of a right, effect of, 153.
general words in a statute of limitations will not be held ap-
plicable to, 166-169.
governmental bodies which represent and are therefore not sub-
ject to the statute of limitations, 161, 162.
laches are not imputable to, 148, 153.
limitation, statutes of do not run against, 148, 152.
limitation, statutes of operate in favor of, 149.
limitation, statutes of, whether may create presumption of pay-
ment against, 149.
STATUTE OF FRAXJDS.
See Frauds, Statute of.
STATUTE OF LIMITATIONS.
See Limitation of Actions.
STATUTES.
Construction.
1. STATUTES Borrowed from Other States— Construction- —
Courts will not follow the construction given a statute by tlie court
of a state from wliich such statute is hnrrowed, when sneh decision
does not appear to be founded on right reasoning. (Mont.) An-
cient Order of Hibernians v. Sx^arrow, 5G3.
Title.
2. CONSTITUTIONAL LAW— Title of Act.— If the title to an
act indicates, and the act itself actually embraces, two different ob-
jects, diverse in their nature and having no necessary connoctioTi,
when the constitution says each statute shall embrace but one object,
the whole act must be treated as void from the manifest inability
of the court to choose liotween the two, and hold the act valid as
to one and void as to the other. (Idaho.) Pioneer Irrigation Dist.
V. Bradley, 201.
3. CONSTITUTIONAL LAW— Title to Act.— The generality f.f
the title to an act is no o])jection to it, so long as it is not made
a cover to legislation incongruous in itself, and which by no fair
intendment can be considered as having a necessary or pro]ier con-
nection with it. (Idaho.) Pioneer Irrigation Dist. v. Bradley, 201.
4. CONSTITUTIONAL LAW— Title of Act.— If the legislature is
fairly apprised of the general character of an enactment by the
110^ Index.
subject expressed in the title, and all its provisions have a just
and proper reference thereto, and are such as by the nature of the
subject so indicated are manifestly appropriate in that connection,
and as might reasonably be looked for in a measure of such char-
acter, the requirement of the constitution that the title of an act
shall embrace but one subject is complied with. (Idaho.) Pioneer
Iriigation Dist. v. Bradley, 201.
5. CONSTITUTIONAL LAW— Title of Act.— It matters not that
an act embraces technically more than one subject, one of which
only is expressed in its title, so long as the subjects are not foreign
and extraneous to each other, but blend together in the common
purpose evidently sought to be accomplished by the act. (Idaho.)
Pioneer Irrigation Dist. v. Bradley, 201.
6. CONSTITUTIONAL LAW— Title to Act.— If the provisions of
a statute all relate, directly or indirectly, to the same subject, have
a natural connection, and are not foreign to the subject expressed
in its title, they may be united in one act. (Idaho.) Pioneer Irri-
gation Dist. V. Bradley, 201.
7. CONSTITUTIONAL LAW— Title to Act.— Objections should
be grave, and the conflict between the constitution and the statute
palpable, before the judiciary should disregard a legislative enact-
ment upon the sole ground that it embraces more than one subject
in its title. (Idaho.) Pioneer Irrigation Dist. v. Bradley, 201.
8. CONSTITUTIONAL LAW— Title of Act.— However numerous
the provisions of an act may be, if they can be, by fair intend-
ment, considered as falling within the subject matter legislated upon
in the act, or necessary as ends and means to the attainment of such
subject, the act is not in conflict with a constitutional provision that
no act shall embrace more than one subject which must be em-
braced in its title. (Idaho.) Pioneer Irrigation Dist. v. Bradley,
201.
9. CONSTITUTIONAL LAW— Title of Act.— A constitutional
provision that no act shall embrace more than one subject which
shall be expressed in its title is not intended to obstruct honest
legislation, or to prevent the incorporation into a single act of the
entire statutory law upon one general subject. (Idaho.) Pioneer
Irrigation Dist. v. Bradley, 201.
10. CONSTITUTIONAL LAW— Title to Act— Subject of Act.—
The entire statutory law of the state upon the subject of irrigation
and the reclamation of arid lands may be incorporated in a single
original or amendatoTy act under a proper title. (Idaho.) Pioneer
Irrigation Dist. v. Bradley, 201.
11. CONSTITUTIONAL LAW— Consolidation of Statutes by
Amendment. — If two acts have been passed by the legislature on
the same general subject, but with differently worded titles, such
acts may be amended and combined by one act, with a proper title.
(Idaho.) Pioneer Irrigation Dist. v. Bradley, 201.
See Constitutional Law.
STREET RAILROADS.
1. ELECTRIC RAILROADS— Negligent Speed— Injury to Live-
stock.— Running an electric street-car in the nitjht-time. at a s]iee^
in violation of n citv ordinance, and so rapidly that it cannot be
stri)iTioil within tiie di^tinT a cow is seen, when slip comes on the
track twenty yards ahead, is negligence, which renders the railroad
Index. 1103
company liable for the resulting injury to the cow. (Ala.) Annis-
ton Electrical etc. Co. v. Hewitt, 42.
2. STREET BAILBOADS — Negligence — Passenger in Dangerous
Position. — If a street railway company consents to a passenger's tak-
ing a dangerous position on its car and knowingly assumes to carry
him in that position, it must exercise that high degree of care which
the law requires a carrier to observe for the safety of his passen-
gers. The degree of care to be observed by the railway company in
such case must be in proportion to the danger which the passenger's
perilous position entails. (Mo.) Parks v. St. Louis etc. Ry. Co.,
425.
3. STREET BAILBOADS — Contributory Negligence — Passenger
in Dangerous Position. — If a passenger takes a dangerous position on
a street-car, even with the consent of the company, he must observe
for his own safety the care, proportioned to the apparent danger,
that a man of ordinary prudence would observe under like circum-
stances, and, if he fails in this, and is injured from a cause arising
out of, or incident to the position itself, without negligence on the
part of the railroad company, it is not liable. Though the company
ii negligent, still if the passenger fails in such observance of ordin-
ary care, he is guilty of contributorv negligence and cannot recover.
(Mo.) Parks v. St. Louis etc. Ey. Co., 425.
4. STREET RAILROADS — Passenger in Dangerous Position —
Refusal to Carry. — A street railroad company has a right to refuse
to carry a passenger who takes an unusual and dangerous position on
its car. (Mo.) Parks v. St. Louis etc. Ry. Co., 425.
5. STREET RAILROADS — Contributory Negligence — Dangerous
Position of Passenger. — If a passenger, in boarding a street-car,
takes a dangerous position thereon with the knowledge and consent
of the railroad company, and thereafter is not guilty of negligence,
but is injured through the negligence of the company arising out of
a condition which thereafter becomes extrahazardous, he cannot be
defeated of his right to recover, on the ground that he was guilty
of contributory negligence. (Mo.) Parks v. St. Louis etc. Ry. Co.,
425.
See Municipal Corporations, 7-9.
SUBROGATION.
SURETYSHIP— Subrogation.— A County, after default in the
conditions of the bond of its treasurer, may take advantage of se-
curities given by him to his sureties, either by way of subrogation
or by procuring an assignment from the sureties. (Neb.) County
ol Harlan v. Whitney, 610.
See Principal and Surety.
SUMMONS.
See Process.
SUNDAY.
1. LEGAL HOLIDAYS. — Issuance of summons by a clerk of
court on Sunday on a complaint filed on that day is merely a minis-
terial act, and not within the inhibition of a statute prohibiting the
1101 Indbx.
transaction of judicial acts on legal holidays; summons so issued is
valid. (Idaho.) Hav^ens v. Stiles, 195.
2. SXJNDAY CONTEACTS. — A . contract for the conveyance of
land entered on Sunday is valid and not opposed to public policy.
(N. C.) Kodman v. liobiuson, 877.
SUPPORT.
See Deeds.
SURETYSHIP.
See Principal and Surety.
SURROGATE COURT.
See Eeference.
TAXATION.
Constitntional Law.
1. CONSTITUTIONAL LAW— Taxation— Notice to Property
Owner, When Required. — Whenever the amount of the taxes to be
exacted depends on the judciment or discretion of those fixing the
value of the property or the benefits by which such amount is to be
measured, an opportunity must be given the property owner to be
heard. Hence, if an assessment is authorized for the construction of
drainage ditches to be equitably divided among the property owners
along or in the vicinity of the improvement and those benefited
thereby, and no provision is made for notice to the persons assessed
and an opportunity to be heard against the assessment, the statute
is unconstitutional as taking property, without due process of law.
(Iowa.) Beebe v. Magoun, 259.
2. CONSTITUTIONAL LAW— Assessments According to Bene-
fits— Due Process of Law. — If an irrigation law provides for as-
sessments and also the method and means by which benefits received
may be adjudicated, it is not unconstitutional as taking private prop-
erty without due process of law under the guise of taxation or other-
wise. (Idaho.) Pioneer Irrigation Dist. v. Bradley, 201.
Inheritance Tax.
3. INHERITANCE TAXES— Liability of Foreign Corporations
for. — Charitable societies and auxiliaries thereto, incorporated and
organized under the laws of other states are not within the provisions
of an inheritance tax statute which exempts from the payment of
such tax, gifts, bequests, devises, etc., "to or for the use of any
institution in said state for purposes of purely public charity, or
otlier exclusively public purposes," and if such foreign corjiorations
lire entitled to receive property within the state of such statute, by
gift, bequest or devise, they are liable to sucli inheritance tax, al-
tliough some of their charitnble work and enterprises are carried on
witliin the state. (Ohio St.) num])hreys v. State, 888.
4. CONSTITUTIONAL LAW— Inheritance Tax— Foreign Corpora-
tions.— A statute of a state imposing an inheritance tax upon foreign
charitable corporations operating to some extent within the state as
to property received by them therein by gift, bequest, or devise, is
not unconstitutional as an unlawful discrimination against them or
Index. 1105
as denying them the equal protection of the land. (Ohio St.)
Humphreys v. State, 888.
Foreclosure of Lien — Unknoicn Oaoncrs.
5. TAX LIEN — Foreclosure. — A Description of the Land in a pub-
lished notice in proceedings to foreclose a tax lien is sutlieient where
the context shows that property in the state is referred to, and there
is but one tract in the state answering the description, although it is
equally applicable to another tract in another state. (Neb.) Leigh
V. Green, 592.
6. TAXATION — roreclosure of Tax Lien.— The Word "Owner,"
as used in the Nebraska statute providing for the foreclosure of tax
>ens where the owner is not known, refers to persons having estates
n the land, and not to encumbrancers and lienholders. (Net.)
Leigh V. Green, 592.
7. TAXATION. — The Owner of the Land is Unknown, within
the meaning of the Nebraska statute providing for the foreclosure of
tax liens, whenever the holder of a tax certificate is unable, with
reasonable diligence and inquiry in the neighborhood of the land,,
to ascertain the whereabouts of the persons appearing to have legal
estates therein or to ascertain who have such estates. (Neb.)
Leigh V. Green, 592.
8. TAXATION — Affidavit. — In Proceedings to Foreclose a tax
lien under a statute providing therefor when the owner of the land
is not known, allegations in the petition and an affiaavit for service
by publication, on information and belief, to the effect that the owner
is unknown, are sufficient as against collateral attack. (Neb.)
Leigh V. Green, 592.
9. TAXATION — Foreclosure — ^Parties. — In a proceeding to fore-
close a tax lien under a statute providing therefor when the owner is
unknown, the propriety of joining as a party defendant one having
an interest in the land short of ownership will not be reviewed col-
laterally. (Neb.) Leigh v. Green, 592.
10. TAXATION— Proceeding in Rem— Due Process of Law. — A
statute awarding to the purchaser at a tax sale a remedy by suit
against the land itself, available whenever the owner is not known,
whereby all persons claiming interests in the land may be barred
coiiiplotely on sale under foreclosure, does not deny due process of
law. (Neb.) Leigh v. Green, 592.
Tax Title.
11. TAXATION— New Title.— A sale of land in proceedings to
foreclose a tax lien under a statute providing tlierefor wjien the
<i\Yner is unknown, creates a new and independent title nn.l bars all
I>re-existing interests or liens. (Neb.) Leigh v. Green, 592.
12. TAX DEED — Street Assessment Lien — Superiority. — A pur-
chaser at a sale for general taxes acquires a title valid as against a
lien for a street assessment. (Wash.) Ballard v. Way, 993.
13. REMAINDERMEN — Purchase of Tax Title. — Remaindermen
who have no possession, or right of possession, at the time of a tax
sale of the property, may purchase an outstanding tax title for their
exclusive benefit as against other remaindermen. (Iowa.) Crawford
V. Meis, 337.
14. LIFE TENANTS. — Purchase of Tax Title by a life tenant
does not vest the fee in him as against a remainderman, and the
Am. St. Rep., Vol. 101—70
llOe Index.
transaction amounts simply as a redemption from tlie tax sale.
(Iowa.) Crawford v. Meis, 337.
Note.
Taxation, due process of law, what proceedings in aid of may be pro-
vided without impairing the right to, 606.
judicial proceedings in aid of, what may be authorized, 606, 607.
proceedings in rem for the enforcement of tax lien or title, 607.
TELEGRAPHS AND TELEPHONES.
1. ACTIONS, When may be Treated as Ex Delicto Though Based
on Contracts. — An allegation by the plaintiff of contractual rela-
tions with him in an action against a telegraph corporation for the
failure to correctly transmit a message does not necessarily make the
action one upon contract. These matters may properly be pleaded
by way of inducement preliminary to the allegation of facts constitut-
ing a tort, and the action may, therefore, be treated as ex delicto
rather than ex contractu. (Iowa.) Cowan v. Western Union Tel.
Co., 268.
2. PLEADING, Contributory Negligence, Failure to Negative. — ■
A complaint against a telegraph corporation to recover damages for
its negligently failing to transmit a message correctly, need not allege
the absence of contributory negligence on the part of the plaintiff,
where the statute provides that such a corporation is liable for all
mistakes or delays in transmitting or receiving messages over its
lines, and that in actions to recover damages thus caused, the burden
is on the corporation to prove that the mistake or delay was not
due to its negligence. (Iowa.) Cowan v. Western Union Tel. Co.,
268.
3. TELEGRAPH CORPORATIONS. — Damages are Recoverable
for Mental Anguish and Suffering resulting from the failure of a
telegraph corporation to properly transmit a message. (Iowa.)
Cowan V. Western Union Tel. Co., 268.
4. DAMAGES — Mental Suffering. — The impossibility of providing
any exact standard or measure of compensation for injured feelings
does not constitute a sufficient reason for refusing to award damages
for mental angui li resulting from the incorrer-t transmission of a tele-
gram. (Iowa.) Cowan v. Western Union Tel. Co., 268.
5. DAMAGES, WTien not Limited to the Damages Arising from
the Breach of a Contract. — Though the failure of a telegraph cor-
poration to correctly transmit a message is a breach of a contract,
the damages to which it is liable are not limited to the plaintiff's
damages for such breach. The negligence in the performance of the
obligation by which injury resulted to him is a tort, damages for
which are not restricted bv the rules applicable to ordinary actions
for Ijreach of contract. (Iowa.) Cowan v. Western Union Tel. Co.,
268.
TENANCY IN COMMON.
COTENANCY— Title to Property as Shown by Records.— When
persons take title to land as tenants in common and place it upon
record the act, so far as it mav affect purchasers and creditors with-
out notice, mnst be considered as a declaration by the oj^^J^f^
the character in which they intend to hold the property, (i a. bt.)
Cundey v. Hall, 938.
Index. 1107
Note.
Tenancy in Common, confusion of goods, when created by, 917.
TICKETS.
See Carriers; Injunctions, 3-7.
TITLE OF ACT.
See Statutes.
TRESPASSERS.
See Negligence, 10-12.
TRIAL.
Eemai-Tcs of Covrt and Covnsel.
1. TRIAL. — Objection to Improper Remarks Made by Counsel
must be made at the time the statement is made, or within a reason-
able time thereafter, and must be brought to tlio attention of such
counsel, as well as to that of the court. (N. H.) Bond v. Bean,
686.
2. TRIAL — Comment on Evidence. — It is reversible error for the
court, upon a dispute as to what a witness has testified to upon a
material point, to declare in the presence of the jury what such evi-
dence was, and that the stenographer's report thereof Is wrong.
(Wash.) State v. Glindemann, 1001.
Instructions.
See Criminal Law, 21, 22.
3. TRIAL — Instructions. — It is not error to refuse to give re-
quested instructions already covered by instructions given. (Wash.)
State V. Clark, 1006.
4. TRIAL. — Denial of Requests for Specific Instructions is not
error when their substance has been embodied in instructions al-
ready given. (N. H.) Bond v. Bean, 686.
5. TRIAL — Instructions. — The fact that an essential element is
lacking in one instruction is not ground for a reversal of the judg-
ment, if such element is supplied by other instructions. (III.)
Beidler v. King, 246.
6. TRIALS. — Instructions may assume as established facts about
which there is no dispute. (Mo.) Parks v. St. Louis etc. Ry. Co.,
42.5.
7. TRIAL. — Instruction Given, stating correct abstract propo-
sitions of law, are not ground for reversal of the judLTnient. unless
they intend to mislead the jury. (111.) Beidler v. King, 246.
8. TRIAL. — Instructions Which are Conflicting upon a nsaterial
issue are ground for the reversal of the judgment. (Mont.) State
V. Keerl, 579.
See Criminal Law; Jury.
TROVER.
1. TROVER^-Sale of Stock by Broker.— If a Husband transfers
an account with a stock broker from his own to his wife's name, she
1108 Index.
may maintain an action for trover and conversion against the broker,
if he, without notice to her, sells securities in the account for the
husband's debt. (Pa. St.) Sparks v. Hurley, 926.
2. CONVERSION.— Any Intermeddling with Property of An-
other, or the exercise of dominion over it, whether by the defendant
alone, or in connection with others, in denial of the owner's rights, is
a conversion, for which trover will lie, though the defendant had not
the complete manucaption of the property. (Ala.) Milner etc. Co.
V. Ue Loach etc. Co., 63.
3. TROVER — Defense — Bona Fide Purchaser. — It is no defense
to the action of trover tli;it the dcfeiidant is a purchaser for value,
and without notice of the rights of the real owner. (Ala.) Milner
etc. Co. V. De Loach etc. Co., 63.
4. TROVEIU-Levy of Attachment— Custody of Law.— If the
legal title to property, and the right to its immediate possession are
in one person, the possession of an officer under an attachment writ
against another person is illegal, and the property is not in the custody
of ftie law so as to prevent the real owner from maintaining trover
for it against one who purchases it at sale under such attachment.
(Ala.) Milner etc. Co. v. De Loach etc. Co., G3.
TRUSTS.
1. TRUST, When not Created by a Deposit in Bank.— If A opens
an account in a bank in which he deposits his own money
in his name "in trust for B, " this does not necessarily create a
trust in favor of B, and a court is justified in finding that no
trust was thereby created if there is evidence of declarations on the
part of B tending to show that he had no interest in the moneys
deposited. (N. Y.) Matter of Barefield, 814.
2. TRUSTS. — A Purchase of Trust Property of the Trustee is
not necessarily void; the cestui que trust has a right to aflirin the
sale, and an affirmance will be implied from an unreasonable delay
in making an election. (Neb.) Shelby v. Creighton, 630.
See Parties.
Note.
United States, assignment to of a debt barred by the statute of
limitations, 183.
laches cannot be imputed to, 182.
limitation of actions by when not suing for a public right, 181-
183.
limitation, statutes of in actions where it is a nominal plaintiff
and not the real party in interest, 171.
limitation, statutes of, what language make applicable against,
164.
statutes of limitation do not affect claims of, 151.
USURY.
1. USURY— Corrupt Intent. — A contract for interest at higher
than the legal rate both before and after judgment, without a cor-
rupt intent on the part of the lender to exact an unlawful rate of
interest, is not usurious. (Idaho.) Anderson v. Creamery etc. Co.,
ISS.
2. USURY is Matter of Intention, and to avoid a contract it
must ap]ii'ar that tlie lender knew the facts, and acted with a view
of evadiii'r the law. (Idaho.) Anderson v. Creamery etc. Co., 188.
Index. 1109
VENDOB AND VENDEE.
See Deeds; Frauds, Statute of.
WAGES.
See Assignment; Bankruptcy.
WALLS.
See Negligence, 12; Party-walls.
WATERS AND WATERCOURSES.
Appropriation.
1. WATERS — ^Rights Of Appropriators. — If the waters of a nat-
ural stream have been appropriated according to law, and put to a
beneficial use, the rights thus acquired carry with them an interest
in the stream from the points where the waters are diverted to the
source from which the supply is obtained and any interference with the
stream by a person having no interest therein, to the damage of the
appropriator, is unlawful and actionable. (Utah.) Cole v. Kichards
Trr. Co., 962.
2. WATERS — Appropriation — Sources of Supply. — ^If lakes form
a part of tlie source of supply of a creek, and with the exception of
one of such lakes form a part of the natural channel of one of the
tributaries of such creek, prior appropriators of the waters of the
creek are entitled to the snnie usufructuary rights to the waters which
naturally flow and collect in such lakes, and which eventually find
their way into the main channel, as they have to the balance of the
natural flow of creek. (T'tah.) Cole v. Eichards Irr. Co., 962.
3. WATERS— Unlawful Interference with. — A Constitutional
provision that "all existing rights to the use of any of the waters
of this state for any useful or beneficial purpose are hereby recog-
nized and confirmed," puts it beyond the power of any person to
lawfully go upon a stream of water in which he has acquired no right,
and interfere with existing rights, or to destroy or cut off the source
of supply, of such stream, although it consists of a pond or a lake.
(Utah.) Cole v. Eichards Irr. Co., 96^2.
Boxmdaries when Lake Recedes.
4. BOUNDARIES Where Water of Lake Recedes. — When an ir-
regularly shaped, non-navigal)le lake without outlet or inlet drys up,
it is not proper to divide the bed among riparian owners by estab-
lishing central points and lines, and extending the side lines of ripar-
ian tracts from where they cross the meander line to such points and
lines. (Minn.) Scheifert V. Briegel, 309.
5. BOUNDARIES Where Water of Lake Recedes.— When the
waters of a non-navigable lake recede and disappear, each riparian
proprietor owns that part of the lake bed included in the triangle
made ])y projecting lines from the points where the side division
lines respectively cross the marginal line to the center of the lake;
but if the lake is of irregular shape and without outlet or inlet, the
inequalities occasioned by the broken shore line should be equitably
adjusted between the contiguous owners by disregarding the irregu-
larities, or ])y treating the lake as composed of separate bodies of
■water. (Minn.) Scheifert v. Briegel, 399.
See Highways, 2.
1110 Index,
WATS.
See Easements.
WEAPONS.
1. CONSTITUTIONAL LAW — Carrying Deadly Weapons. — A
statute prohibiting private persons from carrying deadly weapons
within the limits of any city, town, or village in tTie state, is uncon-
stitutional and void. (Idaho.) In re Brickey, 215.
2. CONSTITUTIONAL LAW— Carrying Deadly Weapons.— A
statute prohibiting the carrying of concealed deadly weapons is a
proper exercise of the police power, and is valid, but a statute pro-
hibiting the mere carrying of firearms is void, as the right to do so
is guaranteed by the state and national constitutions. (Idaho.) In
re Brickey, 215.
WILLS.
What is a Will.
1. WILL, WHAT IS — Conveyance in Consideration of Support.
An oral agreement between a son and his parents that he shall, in
consideration of carrying on their business and providing for their
support, become vested, upon their death, with the title to the
family homestead, is testamentary in character. (ISTeb.) Teske v.
Dittberner, 614.
2. WILL, WHAT IS.— The Sole Test by Which to Ascertain
whether an instrument or agreement purporting to affect the title
to land is testamenary, is to inquire whether it undertakes to vest
.■:nv present interest to title therein. (Neb.) Teske v. Dittberner,
G14.
Revocation of "Will.
3. WILLS — Revocation — Fraud Preventing Destruction of Will.
Fraud on the part of the testator's wife, who is sole devisee under
his will, in falsely representing to him that it has been destroyed,
whereby he is prevented from destroying it or executing another, is
not ground for the revocation of such will. (Ky.) Trice v. Ship-
ton, 351.
4. WILLS — Revocation. — Courts cannot substitute for the plain
refjuirement of thi? statute the sui)i)osed desire, intention, or even
unaccomplished attempt of a testator to destroy or revoke his will.
(Ky.) Trice v. Shipton, 351.
See Conversion.
WRIT OF ASSISTANCE.
See Assistance, Writ of.
WRIT OF PROHIBITION.
See Prohibition. Wiit of.
X-RAY PICTURES.
See Evidence, I,
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